BEARD, SECRETARY, PENNSYLVANIA DEPART- MENT OF CORRECTIONS v. BANKS, individu ally and on behalf of all others similarly situated

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521 OCTOBER TERM, 2005
Syllabus
BEARD, SECRETARY, PENNSYLVANIA DEPART-
MENT OF CORRECTIONS v. BANKS, individu
ally and on behalf of all others
similarly situated
certiorari to the united states court of appeals for
the third circuit
No. 04–1739. Argued March 27, 2006—Decided June 28, 2006
Pennsylvania houses its 40 most dangerous and recalcitrant inmates in
a Long Term Segregation Unit. Inmates begin in level 2, which has
the most severe restrictions, but may graduate to the less restrictive
level 1. Plaintiff-respondent Banks, a level 2 inmate, filed this federal
court action against defendant-petitioner, the Secretary of the Depart
ment of Corrections (Secretary), alleging that a level 2 policy (Policy)
forbidding inmates any access to newspapers, magazines, and photo
graphs violates the First Amendment. During discovery, Banks de
posed Deputy Prison Superintendent Dickson and the parties intro
duced prison policy manuals and related documents into the record.
The Secretary then filed a summary judgment motion, along with a
statement of undisputed facts and the deposition. Rather than filing
an opposition to the motion, Banks filed a cross-motion for summary
judgment, relying on the undisputed facts, including those in the deposi
tion. Based on this record, the District Court granted the Secretary’s
motion and denied Banks’. Reversing the Secretary’s summary judg
ment award, the Third Circuit held that the prison regulation could not
be supported as a matter of law.
Held: The judgment is reversed, and the case is remanded.
399 F. 3d 134, reversed and remanded.
Justice Breyer, joined by The Chief Justice, Justice Kennedy,
and Justice Souter, concluded that, based on the record before this
Court, prison officials have set forth adequate legal support for the Pol
icy, and Banks has failed to show specific facts that could warrant a
determination in his favor. Pp. 528–536.
(a) Turner v. Safley, 482 U. S. 78, and Overton v. Bazzetta, 539 U. S.
126, contain the basic substantive legal standards covering this case.
While imprisonment does not automatically deprive a prisoner of consti
tutional protections, Turner, 482 U. S., at 93, the Constitution sometimes
permits greater restriction of such rights in a prison than it would allow
elsewhere, id., at 84–85. As Overton, supra, at 132, pointed out, courts

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522 BEARD v. BANKS
Syllabus
also owe “substantial deference to the professional judgment of prison
administrators.” Under Turner, restrictive prison regulations are per
missible if they are “reasonably related to legitimate penological inter
ests.” 482 U. S., at 89. Because this case is here on the Secretary’s
summary judgment motion, the Court examines the record to determine
whether he has demonstrated “the absence of a genuine issue of mate
rial fact,” Celotex Corp. v. Catrett, 477 U. S. 317, 323, and his entitlement
to judgment as a matter of law. See, e. g., Fed. Rule Civ. Proc. 56(c).
If he has, the Court determines whether Banks has, “by affidavits or as
otherwise provided” in Rule 56, “set forth specific facts showing . . . a
genuine issue for trial,” Rule 56(e). Inferences about disputed facts
must be drawn in Banks’ favor, but deference must be accorded prison
authorities’ views with respect to matters of professional judgment.
Pp. 528–530.
(b) The Secretary rested his motion primarily on the undisputed facts
statement and Dickson’s affidavit. The first of his justifications for the
Policy—the need to motivate better behavior on the part of particularly
difficult prisoners—sufficiently satisfies Turner’s requirements. The
statement and affidavit set forth a “ ‘valid, rational connection’ ” be
tween the Policy and “legitimate penological interests,” 482 U. S., at 89,
95. Dickson noted that prison authorities are limited in what they can
and cannot deny or give a level 2 inmate, who has already been deprived
of most privileges, and that the officials believe that the specified items
are legitimate as incentives for inmate growth. The undisputed facts
statement added that the Policy encourages progress and discourages
backsliding by level 1 inmates. These statements point to evidence
that the regulations serve the function identified. The articulated con
nections between newspapers and magazines, the deprivation of vir
tually the last privilege left to an inmate, and a significant incentive
to improve behavior, are logical ones. Thus, this factor supports the
Policy’s “reasonableness.” The second, third, and fourth Turner fac
tors—whether there are “alternative means of exercising the right that
remain open to prison inmates,” id., at 90; the “impact” that accommo
dating “the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources,” ibid.; and whether
there are “ready alternatives” for furthering the governmental interest,
ibid.—add little to the first factor’s logical rationale here. That two of
these three factors seem to favor the Policy therefore does not help the
Secretary. The real task in this case is not balancing the Turner fac
tors but determining whether the Secretary’s summary judgment mate
rial shows not just a logical relation but a reasonable relation. Given
the deference courts must show to prison officials’ professional judg
ment, the material presented here is sufficient. Overton provides sig

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523 Cite as: 548 U. S. 521 (2006)
Syllabus
nificant support for this conclusion. In both cases, the deprivations
(family visits in Overton and access to newspapers, magazines, and pho
tographs here) have an important constitutional dimension; prison offi
cials have imposed the deprivation only upon those with serious prison
behavior problems; and those officials, relying on their professional
judgment, reached an experience-based conclusion that the policies help
to further legitimate prison objectives. Unless there is more, the Sec
retary’s supporting material brings the Policy within Turner’s scope.
Pp. 530–533.
(c) Although summary judgment rules gave Banks an opportunity to
respond to these materials, he did not do so in the manner the rules
provide. Instead, he filed a cross-motion for summary judgment, ar
guing that the Policy fell of its own weight. Neither the cases he cites
nor the statistics he notes support his argument. In reaching a con
trary conclusion, the Third Circuit placed too high an evidentiary burden
on the Secretary and offered too little deference to the prison officials’
judgment. Such deference does not make it impossible for those at
tacking prison policies to succeed. A prisoner may be able to marshal
substantial evidence, for example, through depositions, that a policy is
not reasonable or that there is a genuine issue of material fact for trial.
And, as Overton noted, if faced with a de facto permanent ban involving
a severe restriction, this Court might reach a different conclusion.
Pp. 534–536.
Justice Thomas, joined by Justice Scalia, concluded that, using
the framework set forth in Justice Thomas’ concurrence in Overton v.
Bazzetta, 539 U. S. 126, 138, Pennsylvania’s prison regulations are per
missible. That framework provides the least perilous approach for
resolving challenges to prison regulations and is the approach most
faithful to the Constitution. “Sentencing a criminal to a term of
imprisonment may . . . carry with it the implied delegation to prison
officials to discipline and otherwise supervise the criminal while he is
incarcerated.” Id., at 140, n. A term of imprisonment in Pennsylvania
includes such an implied delegation. Inmates are subject to Depart
ment of Corrections rules and disciplinary rulings, and the challenged
regulations fall with the department’s discretion. This conclusion is
supported by the plurality’s Turner v. Safley, 482 U. S. 78, analysis.
The “history of incarceration as punishment [also] supports the view
that the sentenc[e] . . . terminated” respondent’s unfettered right to
magazines, newspapers, and photographs. Overton, 539 U. S., at 142
(Thomas, J., concurring in judgment). While Pennsylvania “is free to
alter its definition of incarceration to include the retention” of un
fettered access to such materials, it appears that the Commonwealth
instead sentenced respondent against the backdrop of its traditional

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524 BEARD v. BANKS
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conception of imprisonment, which affords no such privileges. Id., at
144–145. Pp. 536–542.
Breyer, J., announced the judgment of the Court and delivered an opin
ion, in which Roberts, C. J., and Kennedy and Souter, JJ., joined.
Thomas, J., filed an opinion concurring in the judgment, in which Scalia,
J., joined, post, p. 536. Stevens, J., filed a dissenting opinion, in which
Ginsburg, J., joined, post, p. 542. Ginsburg, J., filed a dissenting opin
ion, post, p. 553. Alito, J., took no part in the consideration or decision
of the case.
Louis J. Rovelli, Executive Deputy Attorney General of
Pennsylvania, argued the cause for petitioner. With him on
the briefs were Thomas W. Corbett, Jr., Attorney General,
Calvin R. Koons and Kemal A. Mericli, Senior Deputy At
torneys General, and John G. Knorr III, Chief Deputy Attor
ney General.
Jonathan L. Marcus argued the cause for the United
States as amicus curiae urging reversal. On the brief were
Solicitor General Clement, Assistant Attorney General
Keisler, Deputy Solicitor General Garre, Sri Srinivasan,
Barbara L. Herwig, and Edward Himmelfarb.
Jere Krakoff argued the cause for respondent. With him
on the brief was Andrew Shubin.*
Justice Breyer announced the judgment of the Court
and delivered an opinion, in which The Chief Justice, Jus
tice Kennedy, and Justice Souter join.
We here consider whether a Pennsylvania prison policy
that “denies newspapers, magazines, and photographs” to a
*Richard Ruda and James I. Crowley filed a brief for the Council of
State Governments et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by David C. Fathi, Elizabeth Alexander, Ste
ven R. Shapiro, Witold J. Walczak, Steven Banks, John Boston, and Elliot
M. Mincberg; for the Becket Fund for Religious Liberty by Anthony R.
Picarello, Jr.; for Prison Legal News et al. by Sanford Jay Rosen, Lucy A.
Dalglish, Gregg P. Leslie, and Michael A. Bamberger; and for Lumumba
Kenyatta Incumaa by Justin S. Antonipillai.

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group of specially dangerous and recalcitrant inmates “vio
late[s] the First Amendment.” Brief for Petitioner i; see
Turner v. Safley, 482 U. S. 78, 89 (1987) (prison rules restrict
ing a prisoner’s constitutional rights must be “reasonably re
lated to legitimate penological interests”). The case arises
on a motion for summary judgment. While we do not deny
the constitutional importance of the interests in question, we
find, on the basis of the record now before us, that prison
officials have set forth adequate legal support for the policy.
And the plaintiff, a prisoner who attacks the policy, has failed
to set forth “specific facts” that, in light of the deference
that courts must show to the prison officials, could warrant
a determination in his favor. Fed. Rule Civ. Proc. 56(e);
Overton v. Bazzetta, 539 U. S. 126, 132 (2003) (need for “sub
stantial deference to the professional judgment of prison
administrators”).
I
A
The prison regulation at issue applies to certain prisoners
housed in Pennsylvania’s Long Term Segregation Unit. The
LTSU is the most restrictive of the three special units that
Pennsylvania maintains for difficult prisoners. The first
such unit, the “Restricted Housing Unit” (RHU), is designed
for prisoners who are under disciplinary sanction or who
are assigned to administrative segregation. App. 80. The
second such unit, the “Special Management Unit” (SMU), is
intended for prisoners who “exhibit behavior that is continu
ally disruptive, violent, dangerous or a threat to the orderly
operation of their assigned facility.” Ibid. The third such
unit, the LTSU, is reserved for the Commonwealth’s “most
incorrigible, recalcitrant inmates.” Id., at 25.
LTSU inmates number about 40. Id., at 127. Most, but
not all, have “flunked out” of the SMU program. Id., at 137.
To qualify, they must have met one or more of the following
conditions: failure to “complete” the SMU program; “assault

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526 BEARD v. BANKS
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ive behavior with the intent to cause death or serious bodily
injury”; causing injury to other inmates or staff; “engaging
in facility disturbance(s)”; belonging to an unauthorized or
ganization or “Security Threat Group”; engaging in criminal
activity that “threatens the community”; possessing while in
prison “weapons” or “implements of escape”; or having a his
tory of “serious” escape attempts, “exerting negative influ
ence in facility activities,” or being a “sexual predator.” Id.,
at 85–86. The LTSU is divided into two levels. All in
mates are initially assigned to the most restrictive level,
level 2. After 90 days, depending upon an inmate’s behav
ior, an individual may graduate to the less restrictive level
1, although in practice most do not. Id., at 131–132, 138.
The RHU, SMU, and LTSU all seriously restrict inmates’
ordinary prison privileges. At all three units, residents are
typically confined to cells for 23 hours a day, have limited
access to the commissary or outside visitors, and (with the
exception of some phases of the SMU) may not watch televi
sion or listen to the radio. Id., at 102; Brief for Petitioner
2–4.
Prisoners at level 2 of the LTSU face the most severe form
of the restrictions listed above. They have no access to the
commissary, they may have only one visitor per month (an
immediate family member), and they are not allowed phone
calls except in emergencies. App. 102. In addition they
(unlike all other prisoners in the Commonwealth) are re
stricted in the manner at issue here: They have no access to
newspapers, magazines, or personal photographs. Id., at 26.
They are nonetheless permitted legal and personal corre
spondence, religious and legal materials, two library books,
and writing paper. Id., at 35, 102, 169. If an inmate pro
gresses to level 1, he enjoys somewhat less severe restric
tions, including the right to receive one newspaper and five
magazines. Id., at 26, 102. The ban on photographs is not
lifted unless a prisoner progresses out of the LTSU alto
gether. Ibid.

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B
In 2001, plaintiff Ronald Banks, respondent here, then a
prisoner confined to LTSU level 2, filed this federal-court
action against Jeffrey Beard, the Secretary of the Pennsyl
vania Department of Corrections. See Rev. Stat. § 1979,
42 U. S. C. § 1983. Banks claimed that the level 2 policy
(Policy) forbidding inmates all access to newspapers, maga
zines, and photographs bears no reasonable relation to any
legitimate penological objective and consequently violates
the First Amendment. App. 15; see also Turner, supra;
Overton, supra. The Secretary, the defendant, petitioner
here, filed an answer. The District Court certified a class
composed of similar level 2 inmates, and the court assigned
the case to a Magistrate who conducted discovery.
Banks’ counsel deposed a deputy superintendent at the
prison, Joel Dickson. The parties introduced various prison
policy manuals and related documents into the record. And
at that point the Secretary filed a motion for summary judg
ment. He also filed a “Statement of Material Facts Not in
Dispute,” with a copy of the deputy superintendent’s deposi
tion attached as an appendix. See App. 25; Rule 56.1(C)(1)
(WD Pa. 2006).
Banks (who was represented by counsel throughout) filed
no opposition to the Secretary’s motion, but instead filed a
cross-motion for summary judgment. Neither that cross
motion nor any other of Banks’ filings sought to place any
significant fact in dispute, and Banks has never sought a trial
to determine the validity of the Policy. Rather, Banks
claimed in his cross-motion that the undisputed facts, includ
ing those in Dickson’s deposition, entitled him to summary
judgment. In this way, and by failing specifically to chal
lenge the facts identified in the defendant’s statement of un
disputed facts, Banks is deemed to have admitted the valid
ity of the facts contained in the Secretary’s statement. See
Rule 56.1(E).

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528 BEARD v. BANKS
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On the basis of the record as described (the complaint, the
answer, the statement of undisputed facts, other agreed
upon descriptions of the system, the Dickson deposition, and
the motions for summary judgment), the Magistrate recom
mended that the District Court grant the Secretary’s motion
for summary judgment and deny that of Banks. App. to
Brief in Opposition 130. The District Court accepted the
Magistrate’s recommendation. Id., at 131–132.
On appeal, a divided Third Circuit panel reversed the Dis
trict Court’s award of summary judgment to the Secretary.
399 F. 3d 134 (2005). The majority of the panel held that
the prison regulation “cannot be supported as a matter of
law by the record in this case.” Id., at 148; see also infra,
at 536. The Secretary sought our review of the appeals
court’s judgment, and we granted his petition. 546 U. S.
1015 (2005).
II
Turner v. Safley, 482 U. S. 78 (1987), and Overton v. Baz
zetta, 539 U. S. 126 (2003), contain the basic substantive legal
standards governing this case. This Court recognized in
Turner that imprisonment does not automatically deprive a
prisoner of certain important constitutional protections, in
cluding those of the First Amendment. 482 U. S., at 93; see
also O’Lone v. Estate of Shabazz, 482 U. S. 342, 348 (1987).
But at the same time the Constitution sometimes permits
greater restriction of such rights in a prison than it would
allow elsewhere. See, e. g., Turner, supra, at 84–85. As
Overton (summarizing pre-Turner case law) pointed out,
courts owe “substantial deference to the professional judg
ment of prison administrators.” 539 U. S., at 132. And
Turner reconciled these principles by holding that restric
tive prison regulations are permissible if they are “ ‘reason
ably related’ to legitimate penological interests,” 482 U. S.,
at 87, and are not an “ ‘exaggerated response’ ” to such objec
tives, ibid.

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Turner also sets forth four factors “relevant in determin
ing the reasonableness of the regulation at issue.” Id., at 89.
First, is there a “ ‘valid, rational connection’ between the
prison regulation and the legitimate governmental interest
put forward to justify it”? Ibid. Second, are there “alter
native means of exercising the right that remain open to
prison inmates”? Id., at 90. Third, what “impact” will “ac
commodation of the asserted constitutional right . . . have on
guards and other inmates, and on the allocation of prison
resources generally”? Ibid. And, fourth, are “ready alter
natives” for furthering the governmental interest available?
Ibid.
This case has arrived in this Court in the context of the
Secretary’s motion for summary judgment. Thus we must
examine the record to see whether the Secretary, in deposi
tions, answers to interrogatories, admissions, affidavits and
the like, has demonstrated “the absence of a genuine issue
of material fact,” Celotex Corp. v. Catrett, 447 U. S. 317, 323
(1986), and his entitlement to judgment as a matter of law.
See, e. g., Fed. Rule Civ. Proc. 56(c).
If the Secretary has done so, then we must determine
whether Banks, the plaintiff, who bears the burden of per
suasion, Overton, supra, at 132, has “by affidavits or as oth
erwise provided” in Rule 56 (e. g., through depositions, etc.)
“set forth specific facts showing that there is a genuine issue
for trial.” Rule 56(e) (emphasis added). If not, the law
requires entry of judgment in the Secretary’s favor. See
Celotex Corp., supra, at 322 (Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial”).
We recognize that at this stage we must draw “all justi
fiable inferences” in Banks’ “favor.” Anderson v. Liberty

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530 BEARD v. BANKS
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Lobby, Inc., 477 U. S. 242, 255 (1986). In doing so, however,
we must distinguish between evidence of disputed facts and
disputed matters of professional judgment. In respect to
the latter, our inferences must accord deference to the views
of prison authorities. Overton, supra. Unless a prisoner
can point to sufficient evidence regarding such issues of judg
ment to allow him to prevail on the merits, he cannot prevail
at the summary judgment stage.
III
The Secretary in his motion set forth several justifications
for the prison’s policy, including the need to motivate better
behavior on the part of particularly difficult prisoners, the
need to minimize the amount of property they control in
their cells, and the need to ensure prison safety, by, for exam
ple, diminishing the amount of material a prisoner might use
to start a cell fire. We need go no further than the first
justification, that of providing increased incentives for better
prison behavior. Applying the well-established substantive
and procedural standards set forth in Part II, we find, on the
basis of the record before us, that the Secretary’s justifica
tion is adequate. And that finding here warrants summary
judgment in the Secretary’s favor.
A
The Secretary rested his motion for summary judgment
primarily upon the statement of undisputed facts along with
Deputy Prison Superintendent Dickson’s affidavit. The
statement of undisputed facts says that the LTSU’s 40
inmates, about 0.01 percent of the total prison population,
constitute the “ ‘worst of the worst,’ ” those who “have
proven by the history of their behavior in prison, the neces
sity of holding them in the rigorous regime of confinement”
of the LTSU. App. 26. It then sets forth three “penologi
cal rationales” for the Policy, summarized from the Dickson
deposition:

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(1) to “motivat[e]” better “behavior” on the part of
these “particularly difficult prisoners,” by providing
them with an incentive to move to level 1, or out of the
LTSU altogether, and to “discourage backsliding” on the
part of level 1 inmates;
(2) to minimize the amount of property controlled by the
prisoners, on the theory that the “less property these
high maintenance, high supervision, obdurate trouble
makers have, the easier it is for . . . correctional officer[s]
to detect concealed contraband [and] to provide secu
rity”; and
(3) to diminish the amount of material (in particular
newspapers and magazines) that prisoners might use as
weapons of attack in the form of “ ‘spears’ ” or “ ‘blow
guns,’ ” or that they could employ “as tools to catapult
feces at the guards without the necessity of soiling one’s
own hands,” or use “as tinder for cell fires.” Id., at 27.
As we have said we believe that the first rationale itself
satisfies Turner’s requirements. First, the statement and
deposition set forth a “ ‘valid, rational connection’ ” between
the Policy and “ ‘legitimate penological objectives.’ ” 482
U. S., at 89, 95. The deputy superintendent stated in his
deposition that prison authorities are “very limited . . . in
what we can and cannot deny or give to [a level 2] inmate
[who typically has already been deprived of almost all privi
leges, see supra, at 526], and these are some of the items
that we feel are legitimate as incentives for inmate growth.”
App. 190. The statement of undisputed facts (relying on the
deposition) added that the Policy “serves to encourage . . .
progress and discourage backsliding by the level 1 inmates.”
Id., at 27.
These statements point to evidence—namely, the views of
the deputy superintendent—that the regulations do, in fact,
serve the function identified. The articulated connections
between newspapers and magazines, the deprivation of vir
tually the last privilege left to an inmate, and a significant

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incentive to improve behavior, are logical ones. Thus, the
first factor supports the Policy’s “reasonableness.”
As to the second factor, the statement and deposition make
clear that, as long as the inmate remains at level 2, no “alter
native means of exercising the right” remain open to him.
Turner, supra, at 90. After 90 days the prisoner may be
able to graduate to level 1 and thus regain his access to most
of the lost rights. In the approximately two years after the
LTSU opened, about 25 percent of those confined to level 2
did graduate to level 1 or out of the LTSU altogether. App.
138; Reply Brief for Petitioner 8. But these circumstances
simply limit, they do not eliminate, the fact that there is
no alternative. The absence of any alternative thus pro
vides “some evidence that the regulations [a]re unreason
able,” but is not “conclusive” of the reasonableness of the
Policy. Overton, 539 U. S., at 135.
As to the third factor, the statement and deposition indi
cate that, were prison authorities to seek to “accommo
dat[e] . . . the asserted constitutional right,” the resulting
“impact” would be negative. Turner, 482 U. S., at 90. That
circumstance is also inherent in the nature of the Policy: If
the Policy (in the authorities’ view) helps to produce better
behavior, then its absence (in the authorities’ view) will help
to produce worse behavior, e. g., “backsliding” (and thus the
expenditure of more “resources” at level 2). Ibid. Simi
larly, as to the fourth factor, neither the statement nor the
deposition describes, points to, or calls to mind any “alterna
tive method of accommodating the claimant’s constitutional
complaint . . . that fully accommodates the prisoner’s rights
at de minimis cost to valid penological interests.” Id., at
90–91.
In fact, the second, third, and fourth factors, being in a
sense logically related to the Policy itself, here add little, one
way or another, to the first factor’s basic logical rationale.
See post, at 547 (Stevens, J., dissenting) (noting that “depri

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vation theory does not map easily onto several of the Turner
factors”), cf. post, at 540–542 (Thomas, J., concurring in judg
ment) (similar). The fact that two of these latter three fac
tors seem to support the Policy does not, therefore, count in
the Secretary’s favor. The real task in this case is not bal
ancing these factors, but rather determining whether the
Secretary shows more than simply a logical relation, that
is, whether he shows a reasonable relation. We believe the
material presented here by the prison officials is sufficient to
demonstrate that the Policy is a reasonable one.
Overton provides significant support for this conclusion.
In Overton we upheld a prison’s “severe” restriction on the
family visitation privileges of prisoners with repeat sub
stance abuse violations. 539 U. S., at 134. Despite the
importance of the rights there at issue, we held that with
holding such privileges “is a proper and even necessary man
agement technique to induce compliance with the rules of
inmate behavior, especially for high-security prisoners who
have few other privileges to lose.” Ibid.
The Policy and circumstances here are not identical, but
we have not found differences that are significant. In both
cases, the deprivations at issue (all visits with close family
members; all access to newspapers, magazines, and photos)
have an important constitutional dimension. In both cases,
prison officials have imposed the deprivation at issue only
upon those with serious prison-behavior problems (here the
40 most intractable inmates in the Commonwealth). In both
cases, prison officials, relying on their professional judgment,
reached an experience-based conclusion that the policies help
to further legitimate prison objectives.
The upshot is that, if we consider the Secretary’s support
ing materials (i. e., the statement and deposition), by them
selves, they provide sufficient justification for the Policy.
That is to say, unless there is more, they bring the Policy
within Turner’s legitimating scope.

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534 BEARD v. BANKS
Opinion of Breyer, J.
B
Although summary judgment rules provided Banks with
an opportunity to respond to the Secretary’s materials, he
did not offer any fact-based or expert-based refutation in
the manner the rules provide. Fed. Rule Civ. Proc. 56(e)
(requiring plaintiff through, e. g., affidavits, etc., to “set forth
specific facts showing that there is a genuine issue for trial”
(emphasis added)). Instead, Banks filed his own cross
motion for summary judgment in which he claimed that the
Policy fell of its own weight, i. e., that the Policy was “unrea
sonable as a matter of law.” Plaintiffs’ Brief in Support of
Motion for Summary Judgment in No. C. A. 01–1956 (WD
Pa.), p. 13 (hereinafter Plaintiffs’ Brief). In particular,
Banks argued (and continues to argue) that the Policy lacks
any significant incentive effect given the history of incor
rigibility of the inmates concerned and the overall depriva
tions associated with the LTSU, Brief for Respondent 22;
Plaintiffs’ Brief 13. He points in support to certain court
opinions that he believes reflect expert views that favor his
position. Abdul Wali v. Coughlin, 754 F. 2d 1015, 1034
(CA2 1985); Bieregu v. Reno, 59 F. 3d 1445, 1449 (CA3 1995);
Knecht v. Collins, 903 F. Supp. 1193, 1200 (SD Ohio 1995),
aff ’d in part, rev’d in part, vacated in part, 187 F. 3d 636 (CA6
1999). And he adds that only about one-quarter of level 2
inmates graduate out of that environment.
The cases to which Banks refers, however, simply point
out that, in the view of some courts, increased contact with
the world generally favors rehabilitation. See Abdul Wali,
supra, at 1034; Bieregu, supra, at 1449; Knecht, supra, at
1200. That circumstance, as written about in court opinions,
cannot provide sufficient support, particularly as these
courts were not considering contexts such as this one, where
prison officials are dealing with especially difficult prisoners.
Neither can Banks find the necessary assistance in the fact
that only one-quarter or so of the level 2 population gradu
ates to level 1 or out of the LTSU. Given the incorrigibility

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535 Cite as: 548 U. S. 521 (2006)
Opinion of Breyer, J.
of level 2 inmates—which petitioner himself admits—there
is nothing to indicate that a 25 percent graduation rate is
low, rather than, as the Secretary suggests, acceptably high.
We recognize that the Court of Appeals reached a contrary
conclusion. But in doing so, it placed too high an eviden
tiary burden upon the Secretary. In respect to behavior
modification incentives, for example, the court wrote that the
“District Court did not examine . . . whether the ban was
implemented in a way that could modify behavior, or inquire
into whether the [Department of Corrections’] deprivation
theory of behavior modification had any basis in real human
psychology, or had proven effective with LTSU inmates.”
399 F. 3d, at 142. And, the court phrased the relevant
conclusions in terms that placed a high summary judgment
evidentiary burden upon the Secretary, i. e., the moving
party. See, e. g., id., at 141 (“[W]e cannot say that the [de
fendant] has shown how the regulations in this case serve
[an incentive-related] purpose”). The court’s statements
and conclusions here also offer too little deference to the
judgment of prison officials about such matters. The court,
for example, offered no apparent deference to the deputy
prison superintendent’s professional judgment that the
Policy deprived “particularly difficult” inmates of a last re
maining privilege and that doing so created a significant
behavioral incentive.
Contrary to Justice Ginsburg’s suggestion, post, at 554–
556 (dissenting opinion), we do not suggest that the defer
ence owed prison authorities makes it impossible for prison
ers or others attacking a prison policy like the present one
ever to succeed or to survive summary judgment. After all,
the constitutional interest here is an important one. Turner
requires prison authorities to show more than a formalistic
logical connection between a regulation and a penological
objective. A prisoner may be able to marshal substantial
evidence that, given the importance of the interest, the Pol
icy is not a reasonable one. Cf. 482 U. S., at 97–99 (striking

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536 BEARD v. BANKS
Thomas, J., concurring in judgment
down prison policy prohibiting prisoner marriages). And
with or without the assistance that public interest law firms
or clinics may provide, it is not inconceivable that a plaintiff ’s
counsel, through rigorous questioning of officials by means
of depositions, could demonstrate genuine issues of fact for
trial. Finally, as in Overton, we agree that “the restriction
is severe,” and “if faced with evidence that [it were] a de
facto permanent ban . . . we might reach a different conclu
sion in a challenge to a particular application of the regula
tion.” 539 U. S., at 134. That is not, however, the case
before us.
Here prison authorities responded adequately through
their statement and deposition to the allegations in the com
plaint. And the plaintiff failed to point to “ ‘specific facts’ ”
in the record that could “lead a rational trier of fact to find”
in his favor. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U. S. 574, 587 (1986) (quoting Fed. Rule Civ.
Proc. 56(e)).
The judgment of the Court of Appeals for the Third
Circuit is reversed, and the case is remanded for further
proceedings.
It is so ordered.
Justice Alito took no part in the consideration or deci
sion of this case.
Justice Thomas, with whom Justice Scalia joins, con
curring in the judgment.
Judicial scrutiny of prison regulations is an endeavor
fraught with peril. Just last Term, this Court invalidated
California’s policy of racially segregating prisoners in its re
ception centers, notwithstanding that State’s warning that
its policy was necessary to prevent prison violence. See
Johnson v. California, 543 U. S. 499 (2005). California sub
sequently experienced several instances of severe race-based
prison violence, including a riot that resulted in 2 fatalities
and more than 100 injuries, and significant fighting along ra

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537 Cite as: 548 U. S. 521 (2006)
Thomas, J., concurring in judgment
cial lines between newly arrived inmates, the very inmates
that were subject to the policy invalidated by the Court in
Johnson. See Winton & Bernstein, More Violence Erupts
at Pitchess; Black and Latino inmates clash at the north
county jail, leaving 13 injured, Los Angeles Times, Mar. 1,
2006, Metro Desk, p. B1. This powerful reminder of the
grave dangers inherent in prison administration confirms my
view that the framework I set forth in Overton v. Bazzetta,
539 U. S. 126, 138 (2003) (opinion concurring in judgment), is
the least perilous approach for resolving challenges to prison
regulations, as well as the approach that is most faithful to
the Constitution. Accordingly, I concur only in the judg
ment of the Court.
I
Both the plurality and Justice Stevens’ dissent evaluate
the regulations challenged in this case pursuant to the ap
proach set forth in Turner v. Safley, 482 U. S. 78 (1987),
which permits prison regulations that “imping[e] on inmates’
constitutional rights” if the regulations are “reasonably re
lated to legitimate penological interests.” Id., at 89. But
as I explained in Overton, Turner and its progeny “rest
on the unstated (and erroneous) presumption that the Con
stitution contains an implicit definition of incarceration.”
Overton, 539 U. S., at 139 (opinion concurring in judgment).
Because the Constitution contains no such definition, “States
are free to define and redefine all types of punishment, in
cluding imprisonment, to encompass various types of dep
rivations—provided only that those deprivations are con
sistent with the Eighth Amendment.” Ibid. (emphasis in
original). Respondent has not challenged Pennsylvania’s
prison policy as a violation of the Eighth Amendment, and
thus the sole inquiry in this case is whether respondent’s
sentence deprived him of the rights he now seeks to exercise.
Id., at 140.
“Whether a sentence encompasses the extinction of a con
stitutional right enjoyed by free persons turns on state law,

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538 BEARD v. BANKS
Thomas, J., concurring in judgment
for it is a State’s prerogative to determine how it will pun
ish violations of its law.” Ibid.1 Although the question
whether Pennsylvania intended to confer upon respondent
and other inmates a right to have unfettered access to news
papers, magazines, and photographs is thus “ultimately for
the State itself to answer,” in the absence of a resolution of
that question by the Pennsylvania Supreme Court, we must
resolve it in the instant case. Id., at 141. Fortunately, the
answer is straightforward.
In Overton, I explained:
“Sentencing a criminal to a term of imprisonment may,
under state law, carry with it the implied delegation to
prison officials to discipline and otherwise supervise the
criminal while he is incarcerated. Thus, restrictions
imposed by prison officials may also be a part of the
sentence, provided that those officials are not acting
ultra vires with respect to the discretion given them, by
implication, in the sentence.” Id., at 140, n.
A term of imprisonment in Pennsylvania includes such an
implied delegation. Pennsylvania inmates are subject to the
rules and disciplinary measures set forth by the Pennsyl
vania Department of Corrections. See, e. g., Inmate Dis
cipline, Policy No. DC–ADM 801 (2004), http://www.cor.
state.pa.us /standards / lib / standards / DC-ADM_801_Inmate_
Discipline.pdf (as visited June 12, 2006, and available in Clerk
of Court’s case file). And no one disputes that the regu
lations challenged in the instant litigation fall within the
1 As in Overton, respondent has not asked this Court to abstain from
resolving his constitutional challenge under Railroad Comm’n of Tex. v.
Pullman Co., 312 U. S. 496 (1941) (holding that federal courts should ordi
narily abstain where the resolution of a federal constitutional issue may
be rendered irrelevant by the determination of a predicate state-law ques
tion), and the issue of Pullman abstention was not considered below. As
a result, respondent has “submitted to the sort of guesswork about the
meaning of prison sentences that is the hallmark of the Turner inquiry.”
Overton, 539 U. S., at 141 (Thomas, J., concurring in judgment).

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539 Cite as: 548 U. S. 521 (2006)
Thomas, J., concurring in judgment
discretion given to the Department of Corrections. As in
Overton, the conclusion that these regulations are included
in the prison sentence is strongly supported by the plural
ity’s Turner analysis. A prison policy that has a “valid, ra
tional connection [to] the . . . legitimate penological objec
tives” of improving prison security and discouraging inmate
misbehavior, ante, at 531 (internal quotation marks omitted),
“that [is] designed to avoid adverse impacts on guards, in
mates, or prison resources, [and] that cannot be replaced
by ‘ready alternatives,’ [is] presumptively included within a
sentence of imprisonment,” Overton, 539 U. S., at 141–142
(Thomas, J., concurring in judgment).
The “history of incarceration as punishment [also] supports
the view that the sentenc[e] imposed on responden[t] termi
nated” his unfettered right to magazines, newspapers, and
photographs. Id., at 142. As I explained in Overton, im
prisonment as punishment “became standardized in the pe
riod between 1780 and 1865,” id., at 143 (citing McGowen,
The Well-Ordered Prison: England, 1780–1865, in The Oxford
History of the Prison: The Practice of Punishment in West
ern Society 79 (N. Morris & D. Rothman eds. 1995)), and
was distinguished by the prisoner’s isolation from the outside
world, 539 U. S., at 143. Indeed, both the Pennsylvania and
Auburn prison models, which formed the basis for prison sys
tems throughout the Nation in the early 1800’s, imposed this
isolation specifically by denying prisoners access to reading
materials and contact with their families. Rothman, Per
fecting the Prison: United States, 1789–1865, in The Oxford
History of the Prison, at 111, 117; see also id., at 118 (explain
ing that in the Pennsylvania system, inmates were “given
nothing to read except the Bible and were prevented from cor
responding with friends and family”); S. Christianson, With
Liberty for Some: 500 Years of Imprisonment in America 145
(1998) (explaining that in Sing Sing, the standard bearer for
the Auburn model, no reading materials of any kind, except
the Bible, were allowed inside). Even as the advent of

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540 BEARD v. BANKS
Thomas, J., concurring in judgment
prison libraries increased prisoners’ access to reading mate
rials, that access was universally “subject to some form of
censorship,” such that “inmates of correctional institutions
are denied access to books which are freely available to the
rest of the community.” G. Bramley, Outreach: Library
Services for the Institutionalised, the Elderly, and the Physi
cally Handicapped 91, 93 (1978).
Although Pennsylvania “is free to alter its definition of
incarceration to include the retention” of unfettered access
to magazines, newspapers, and photographs, it appears that
the Commonwealth instead sentenced respondent against
the backdrop of its traditional conception of imprisonment,
which affords no such privileges. Overton, supra, at 144–
145 (Thomas, J., concurring in judgment). Accordingly, re
spondent’s challenge to Pennsylvania’s prison regulations
must fail.
II
This case reveals the shortcomings of the Turner frame
work, at least insofar as that framework is applied to prison
regulations that seek to modify inmate behavior through
privilege deprivation. In applying the first Turner factor,
the plurality correctly observes that Pennsylvania’s policy
of depriving its most incorrigible inmates of their last few
remaining privileges bears a “valid, rational connection” to
the “legitimate penological objectiv[e]” of “encourag[ing]
progress and discourag[ing] backsliding” of inmate compli
ance with prison rules. Ante, at 531 (internal quotation
marks omitted). Indeed, this Court has previously deter
mined that “[w]ithdrawing . . . privileges is a proper and even
necessary management technique to induce compliance with
the rules of inmate behavior, especially for high-security
prisoners.” Overton, supra, at 134.2
2 In my view, this legal conclusion, combined with the deference to the
judgment of prison officials required under Turner, see ante, at 528–530,
would entitle prison officials to summary judgment against challenges to
their inmate prison deprivation policies in virtually every case. In this

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541 Cite as: 548 U. S. 521 (2006)
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Although policies, such as Pennsylvania’s, that seek to pro
mote compliance with prison rules by withdrawing various
privileges may always satisfy Turner’s first factor, they nec
essarily fail its second factor. Such policies, by design, do
not provide an “alternative means” for inmates to exercise
the rights they have been deprived. 482 U. S., at 90. The
“legitimate penological objectiv[e]” of encouraging compli
ance with prison rules by depriving misbehaving inmates of
various privileges simply cannot be accomplished if prison
officials are required to provide prisoners with an alternative
and equivalent set of privileges. Thus, the plurality’s obser
vation that respondent’s privileges may be restored in re
sponse to continued, improved behavior is simply irrelevant
to the second factor of Turner, which asks only “whether . . .
alternative means of exercising the right . . . remain open to
prison inmates.” Ibid. The answer in the context of privi
lege deprivation policies is always no, thus demonstrating
the difficulty of analyzing such policies under the Turner
framework.
The third and fourth Turner factors are likewise poorly
suited to determining the validity of inmate privilege depri
vation policies. When the “valid penological objectiv[e]” of
a prison policy is encouraging compliance with prison rules,
it makes little sense to inquire into “the impact accommoda
tion of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources
generally,” or into the availability of “ready alternatives.”
Ibid. At best, such inquiries merely collapse the third and
fourth factors into the first, because accommodating the ex
ercise of the deprived right will undermine the incentive ef
fects of the prison policy and because the unavailability of
“ready alternatives” is typically (as in this case) one of the
context, it is highly unlikely a prisoner could establish that the “connection
between the regulation and the asserted goal is arbitrary or irrational.”
Shaw v. Murphy, 532 U. S. 223, 229 (2001) (internal quotation marks
omitted).

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542 BEARD v. BANKS
Stevens, J., dissenting
underlying rationales for the adoption of inmate privilege
deprivation policies.
* * *
Because the prison regulations at issue today are permissi
ble under the approach I explained in Overton, I concur in
the judgment of the Court.
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
By ratifying the Fourteenth Amendment, our society has
made an unmistakable commitment to apply the rule of law
in an evenhanded manner to all persons, even those who fla
grantly violate their social and legal obligations. Thus, it is
well settled that even the “ ‘worst of the worst,’ ” ante, at
530, prisoners retain constitutional protection, specifically in
cluding their First Amendment rights. See, e. g., O’Lone v.
Estate of Shabazz, 482 U. S. 342, 348 (1987). When a prison
regulation impinges upon First Amendment freedoms, it is
invalid unless “it is reasonably related to legitimate penologi
cal interests.” Turner v. Safley, 482 U. S. 78, 89 (1987).
Under this standard, a prison regulation cannot withstand
constitutional scrutiny if “the logical connection between the
regulation and the asserted goal is so remote as to render
the policy arbitrary or irrational,” id., at 89–90, or if the reg
ulation represents an “exaggerated response” to legitimate
penological objectives, id., at 98.
In this case, Pennsylvania prison officials have promul
gated a rule that prohibits inmates in Long Term Segrega
tion Unit, level 2 (LTSU–2), which is the most restrictive
condition of confinement statewide, from possessing any sec
ular, nonlegal newspaper, newsletter, or magazine during the
indefinite duration of their solitary confinement. A prisoner
in LTSU–2 may not even receive an individual article clipped
from such a news publication unless the article relates to him
or his family. In addition, under the challenged rule, any
personal photograph, including those of spouses, children, de

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543 Cite as: 548 U. S. 521 (2006)
Stevens, J., dissenting
ceased parents, or inspirational mentors, will be treated as
contraband and confiscated. See App. 176.
It is indisputable that this prohibition on the possession
of newspapers and photographs infringes upon respondent’s
First Amendment rights. “[T]he State may not, consist
ently with the spirit of the First Amendment, contract the
spectrum of available knowledge. The right of freedom of
speech and press includes not only the right to utter or
to print, but the right to distribute, the right to receive,
the right to read and freedom of inquiry, freedom of
thought . . . .” Griswold v. Connecticut, 381 U. S. 479, 482
(1965) (citation omitted). See also Kaplan v. California, 413
U. S. 115, 119–120 (1973) (explaining that photographs, like
printed materials, are protected by the First Amendment).
Plainly, the rule at issue in this case strikes at the core of
the First Amendment rights to receive, to read, and to think.
Petitioner does not dispute that the prohibition at issue
infringes upon rights protected by the First Amendment.
Instead, petitioner posits two penological interests, which, in
his view, are sufficient to justify the challenged rule notwith
standing these constitutional infringements: prison security
and inmate rehabilitation. Although these interests are cer
tainly valid, petitioner has failed to establish, as a matter of
law, that the challenged rule is reasonably related to these
interests. Accordingly, the Court of Appeals properly de
nied petitioner’s motion for summary judgment, and this
Court errs by intervening to prevent a trial.
Turning first to the security rationale, which the plurality
does not discuss, the Court of Appeals persuasively ex
plained why, in light of the amount of materials LTSU–2 in
mates may possess in their cells, petitioner has failed to dem
onstrate that the prohibition on newspapers, magazines, and
photographs is likely to have any marginal effect on security.
“[E]ach [LTSU–2] inmate is given a jumpsuit, a blanket,
two bedsheets, a pillow case, a roll of toilet paper, a copy
of a prison handbook, ten sheets of writing paper, sev

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544 BEARD v. BANKS
Stevens, J., dissenting
eral envelopes, carbon paper, three pairs of socks, three
undershorts and three undershirts, and may at any point
also have religious newspapers, legal periodicals, a
prison library book, Bibles, and a lunch tray with a plate
and a cup. Many of these items are flammable, could
be used [to start fires, catapult feces, or to create other
dangers] as effectively as a newspaper, magazine or pho
tograph, and have been so used by [LTSU–2] inmates.”
399 F. 3d 134, 143 (CA3 2005) (case below).
In fact, the amount of potentially dangerous material to
which LTSU–2 inmates are seeking access is quite small in
comparison to the amount of material that they already pos
sess in their cells. As the Court of Appeals emphasized,
LTSU–2 inmates “are not requesting unlimited access to in
numerable periodicals,” rather, they are seeking “the ability
to have one newspaper or magazine and some small number
of photographs in their cells at one time.” Id., at 144 (em
phasis added). In light of the quantity of materials that
LTSU–2 inmates are entitled to have in their cell, it does not
follow, as a matter of logic, that preventing inmates from
possessing a single copy of a secular, nonlegal newspaper,
newsletter, or magazine will have any measurable effect on
the likelihood that inmates will start fires, hide contraband,
or engage in other dangerous actions. See, e. g., Mann v.
Smith, 796 F. 2d 79, 81 (CA5 1986) (Higginbotham, J.) (invali
dating a county jail’s ban on newspapers and magazines be
cause, “[i]n view of the jail’s policy of allowing inmates to
possess other material that was flammable and capable of
being used to interfere with the plumbing,” the rule was “too
underinclusive” to be constitutional).1
1 Even less apparent is the security risk that would be posed by respond
ent’s alternative suggestion, which is that LTSU–2 inmates be able to ac
cess news periodicals in the LTSU mini-law library, where inmates are
already permitted to go to view legal materials during 2-hour blocs of time
pursuant to a first-come, first-serve roster of requests. See 399 F. 3d 134,
147 (CA3 2005) (case below).

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545 Cite as: 548 U. S. 521 (2006)
Stevens, J., dissenting
Moreover, there is no record evidence in this case to sup
port a contrary conclusion. Deputy Superintendent Joel
Dickson, whose deposition is a major part of the sparse rec
ord before us, did not identify any dangerous behavior that
would be more likely to occur if LTSU–2 inmates obtained
the limited access to periodicals that they are seeking. He
did, however, make clear that inmates could engage in any
of the behaviors that worried prison officials without using
banned materials:
“Q. Wouldn’t it be fair to say that if an inmate wants to
start a fire, he could start a fire using writing paper in
combination with a blanket or in combination with cloth
ing or linen, bedding materials? He could do that;
couldn’t he?
“A. Yes.
“Q. If he wants to throw feces, he could use a cup for
that; true?
“A. Yes.
“Q. Or if he wants to throw urine, he can use his cup to
throw the urine?
“A. Yes.” App. 196–197.2
The security-based justification for the ban on personal
photographs is even weaker. There is not a single state
ment in Superintendent Dickson’s deposition suggesting that
prisoners have used, or would be likely to use, photographic
paper to start fires or hurl excrement. Cf. id., at 196 (stat
ing that paper products are generally used to start fires).
Perhaps, at trial, petitioner could introduce additional evi
dence supporting his view that the challenged regulation is
in fact reasonably likely to enhance security or that respond
2 See also App. 194 (“I would say there’s any number of ways [LTSU–2
inmates hurl feces]. Oftentimes it’s with the cups that they’re given for
their drinks, things like that, any type of container; or . . . a piece of a
paper or whatever wrapped up that they can use to give a little leverage
and fling the materials”).

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ent’s request for limited access to newspapers and photo
graphs would, for some as yet undisclosed reason, require an
unduly burdensome expenditure of resources on the part of
prison officials. However, the above discussion makes clear
that, at the very least, “reasonable minds could differ as to
the import of the evidence” introduced thus far concerning
the relationship between the challenged regulation and peti
tioner’s posited security interest, Anderson v. Liberty Lobby,
Inc., 477 U. S. 242, 250 (1986). Accordingly, petitioner’s
valid interest in security is not sufficient to warrant judg
ment as a matter of law. See id., at 250–251.
The second rationale posited by petitioner in support of
the prohibitions on newspapers, newsletters, magazines, and
photographs is rehabilitation. According to petitioner, the
ban “provides the [l]evel 2 inmates with the prospect of earn
ing a privilege through compliance with orders and remission
of various negative behaviors and serves to encourage the
progress and discourage backsliding by the level 1 inmates.”
App. 27. In the plurality’s view, in light of the present rec
ord, this rationale is sufficient to warrant a reversal of the
judgment below.
Rehabilitation is undoubtedly a legitimate penological in
terest. However, the particular theory of rehabilitation at
issue in this case presents a special set of concerns for courts
considering whether a prison regulation is consistent with
the First Amendment. Specifically, petitioner advances a
deprivation theory of rehabilitation: Any deprivation of
something a prisoner desires gives him an added incentive
to improve his behavior. This justification has no limiting
principle; if sufficient, it would provide a “rational basis” for
any regulation that deprives a prisoner of a constitutional
right so long as there is at least a theoretical possibility that
the prisoner can regain the right at some future time by
modifying his behavior. See Kimberlin v. United States
Dept. of Justice, 318 F. 3d 228, 240 (CADC 2003) (Tatel, J.,
concurring in part and dissenting in part) (noting that “regu
lations that deprive prisoners of their constitutional rights

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547 Cite as: 548 U. S. 521 (2006)
Stevens, J., dissenting
will always be rationally related to the goal of making prison
more miserable”). Indeed, the more important the constitu
tional right at stake (at least from the prisoners’ perspec
tive), the stronger the justification for depriving prisoners of
that right. The plurality admits as much: “If the Policy (in
the authorities’ view) helps to produce better behavior, then
its absence (in the authorities’ view) will help to produce
worse behavior . . . .” Ante, at 532.
Not surprisingly, as Justice Thomas recognizes, see ante,
at 541–542 (opinion concurring in judgment), this depriva
tion theory does not map easily onto several of the Turner
factors, which are premised on prison officials presenting a
secondary effects type rationale in support of a challenged
regulation. For instance, under the deprivation theory of
rehabilitation, there could never be a “ready alternative” for
furthering the government interest, because the government
interest is tied directly to depriving the prisoner of the con
stitutional right at issue.
Indeed, the strong form of the deprivation theory of reha
bilitation would mean that the prison rule we invalidated in
Turner would have survived constitutional scrutiny if the
State had simply posited an interest in rehabilitating prison
ers through deprivation. In Turner, we held that a Missouri
regulation that forbade inmates from marrying except with
the permission of the prison superintendent was facially un
constitutional. See 482 U. S., at 97–99. We rejected the
State’s proffered security and rehabilitation concerns as not
reasonably related to the marriage ban. See ibid. Taken
to its logical conclusion, however, the deprivation theory of
rehabilitation would mean that the marriage ban in Turner
could be justified because the prohibition furnished prisoners
with an incentive to behave well and thus earn early release.
Cf. Safley v. Turner, 586 F. Supp. 589, 593 (WD Mo. 1984)
(noting that, under the Missouri regulations partially invali
dated by Turner, 482 U. S. 78, inmates had been threatened
with the loss of parole for attempting to exercise their mar
riage rights).

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548 BEARD v. BANKS
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In sum, rehabilitation is a valid penological interest, and
deprivation is undoubtedly one valid tool in promoting reha
bilitation. Nonetheless, to ensure that Turner continues to
impose meaningful limits on the promulgation of rules that
infringe upon inmates’ constitutional rights, see Thornburgh
v. Abbott, 490 U. S. 401, 414 (1989) (stating that Turner’s rea
sonableness standard “ ‘is not toothless’ ”), courts must be
especially cautious in evaluating the constitutionality of
prison regulations that are supposedly justified primarily on
that basis. When, as here, a reasonable factfinder could con
clude that challenged deprivations have a tenuous logical
connection to rehabilitation, or are exaggerated responses to
a prison’s legitimate interest in rehabilitation, prison officials
are not entitled to judgment as a matter of law.
Petitioner argues that, because the various deprivations
in the levels of disciplinary confinement short of LTSU–2 are
also severe, prison officials have no choice but to deprive
inmates of core constitutional rights in LTSU–2 in order to
make LTSU–2 more unattractive than other types of segre
gation. The fact that most States and the Federal Govern
ment run their prisons without resorting to the type of ban
at issue in this case, see Brief for American Civil Liberties
Union et al. as Amici Curiae 21,3 casts serious doubt upon
the need for the challenged constitutional deprivations.
In any event, if we consider the severity of the other condi
tions of confinement in LTSU–2, it becomes obvious that in
mates have a powerful motivation to escape those conditions
irrespective of the ban on newspapers, magazines, and per
sonal photographs. Inmates in LTSU–2 face 23 hours a day
3 This is presumably the type of evidence the plurality suggests that
respondent should have presented through an affidavit or deposition in
response to petitioner’s motion for summary judgment. See Jacklovich
v. Simmons, 392 F. 3d 420, 428–429 (CA10 2004) (noting that plaintiffs
challenging a prison regulation that limited access to publications had in
troduced such evidence and concluding that prison officials were not enti
tled to summary judgment).

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549 Cite as: 548 U. S. 521 (2006)
Stevens, J., dissenting
in solitary confinement, are allowed only one visitor per
month, may not make phone calls except in cases of emer
gency, lack any access to radio or television, may not use the
prison commissary, are not permitted General Educational
Development (GED) or special education study, and may not
receive compensation under the inmate compensation system
if they work as a unit janitor. Although conditions in
LTSU–1 are also harsh, in several respects unrelated to the
challenged regulation, they are far more appealing than the
conditions in LTSU–2. LTSU–1 inmates may have two visi
tors and may make one phone call per month; they have ac
cess to the commissary; they are permitted in-cell GED or
special education study; they are permitted a wider range of
counseling services; and they are eligible to obtain compen
sation under the inmate compensation system. See App. 43,
102; 399 F. 3d, at 148 (case below). The logical conclusion
from this is that, even if LTSU–2 prisoners were not de
prived of access to newspapers and personal photographs,
they would still have a strong incentive to gain promotion
to LTSU–1.
In addition, prisoners in LTSU–1 do not regain access to
personal photographs, which means that the ban on photo
graphs cannot be justified by petitioner’s “ ‘hope’ ” that in
mates will respond to the constitutional deprivations in
LTSU–2 by improving their behavior so they may graduate
into LTSU–1, id., at 142 (quoting petitioner’s counsel). Pris
oners who “graduate” out of the LTSU–1 and back into the
general prison population do regain their right to possess
personal photographs, but they also regain so many addi
tional privileges—from ending their solitary confinement
to regaining access to television and radio—that it strains
credulity to believe that the possibility of regaining the right
to possess personal photographs if they eventually return to
the general prison population would have any marginal ef
fect on the actions of prisoners in LTSU–2.

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550 BEARD v. BANKS
Stevens, J., dissenting
In sum, the logical connection between the ban on newspa
pers and (especially) the ban on personal photographs, on one
hand, and the rehabilitation interests posited by petitioner,
on the other, is at best highly questionable. Moreover, peti
tioner did not introduce evidence that his proposed theory of
behavior modification has any basis in human psychology, or
that the challenged rule has in fact had any rehabilitative
effect on LTSU–2 inmates. Ibid.4 Accordingly, at least
based on the present state of the record, a reasonable fact
finder could conclude that prisoners would have a sufficiently
powerful incentive to graduate out of LTSU–2 even absent
the challenged rule, such that the rule is not likely to have
any appreciable behavior modification effect.
The temporal character of LTSU–2 status further under
mines petitioner’s argument that the ban on newspapers and
photographs at issue in this case is reasonably related to a
legitimate penological interest. All LTSU inmates must
spend 90 days in LTSU–2 status. After that, they receive
a review every 30 days to determine if they should be pro
moted to LTSU–1. That determination is made at the dis
cretion of prison administrators, and is not linked to any spe
cific infraction or compliance. Petitioner acknowledges that
“[a]n inmate in the LTSU can remain on Level 2 status in
definitely.” App. 26. Indeed, as of August 2002, which is
the most recent date for which there is record evidence,
4 I emphasize the lack of evidentiary support for petitioner’s position
because I believe that, in light of the record currently before the Court,
the logical connection between petitioner’s stated interest in rehabilitation
and the prohibition on newspapers and photographs is exceedingly tenu
ous. When the logical connection between prison officials’ stated inter
ests and the restrictions on prisoners’ constitutional rights is not self
evident, we have considered whether prison officials proffered any
evidence that their regulations served the values they identified. See,
e. g., Turner v. Safley, 482 U. S. 78, 98 (1987) (discussing lack of evidence
in the record to support a ban on marriage as related to prison officials’
stated objectives).

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551 Cite as: 548 U. S. 521 (2006)
Stevens, J., dissenting
roughly three-quarters of inmates placed in LTSU–2 had re
mained in that status since the inception of the LTSU pro
gram over two years earlier. See id., at 138. See also ante,
at 532 (plurality opinion). In short, as the Court of Ap
peals explained:
“[T]he LTSU Level 2 is a unique kind of segregation
with characteristics of both disciplinary and administra
tive segregation. Inmates come to LTSU because of
‘unacceptable behaviors’ in other institutions, but they
have not all been adjudicated by a hearing officer to
have violated the [Department of Corrections’] rules.
The LTSU is not a place where inmates are sent for
a discrete period of punishment, pursuant to a specific
infraction, but is a place for ‘Long Term’ segregation of
the most incorrigible and difficult prisoners for as long
as they fall under that umbrella.” 399 F. 3d, at 141 (ci
tation omitted).
The indefinite nature of LTSU–2 confinement, and the fact
that as of August 2002 a significant majority of inmates con
fined at LTSU–2 had remained there since the inception of
the program over two years earlier, suggest that the prohibi
tion on newspapers, magazines, and personal photographs is
an exaggerated response to the prison’s legitimate interest
in rehabilitation. It would be a different case if prison offi
cials had promulgated a regulation that deprived LTSU–2
inmates of certain First Amendment rights for a short pe
riod of time in response to specific disciplinary infractions.
The indefinite deprivations at issue here, however, obviously
impose a much greater burden on inmates’ ability to exercise
their constitutional rights. Absent evidence that these in
definite deprivations will be more effective in achieving re
habilitation than shorter periods of deprivation, a reasonable
factfinder could conclude that the challenged regulation
“sweeps much more broadly than can be explained by [prison

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552 BEARD v. BANKS
Stevens, J., dissenting
officials’] penological objectives,” Turner, 482 U. S., at 98,
and is hence an exaggerated response to petitioner’s legiti
mate interest in rehabilitation.
In short, as with regard to the current state of the record
concerning the connection between the challenged regulation
and its effect on prison security, the record is insufficient to
conclude, as a matter of law, that petitioner has established a
reasonable relationship between his valid interest in inmate
rehabilitation and the prohibition on newspapers, magazines,
and personal photographs in LTSU–2.
* * *
What is perhaps most troubling about the prison regula
tion at issue in this case is that the rule comes perilously
close to a state-sponsored effort at mind control. The State
may not “ ‘invad[e] the sphere of intellect and spirit which it
is the purpose of the First Amendment to our Constitution
to reserve from all official control.’ ” Wooley v. Maynard,
430 U. S. 705, 715 (1977) (quoting West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642 (1943)). In this case, the com
plete prohibition on secular, nonlegal newspapers, newslet
ters, and magazines prevents prisoners from “receiv[ing]
suitable access to social, political, esthetic, moral, and other
ideas,” which are central to the development and preserva
tion of individual identity, and are clearly protected by the
First Amendment, Red Lion Broadcasting Co. v. FCC, 395
U. S. 367, 390 (1969). Similarly, the ban on personal photo
graphs, for at least some inmates, interferes with the capac
ity to remember loved ones, which is undoubtedly a core part
of a person’s “sphere of intellect and spirit.” Moreover, it is
difficult to imagine a context in which these First Amend
ment infringements could be more severe; LTSU–2 inmates
are in solitary confinement for 23 hours a day with no access
to radio or television, are not permitted to make phone calls
except in cases of emergency, and may only have one visitor
per month. They are essentially isolated from any meaning

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553 Cite as: 548 U. S. 521 (2006)
Ginsburg, J., dissenting
ful contact with the outside world. The severity of the con
stitutional deprivations at issue in this case should give
us serious pause before concluding, as a matter of law, that
the challenged regulation is consistent with the sover
eign’s duty to treat prisoners in accordance with “the ethical
tradition that accords respect to the dignity and intrinsic
worth of every individual.” Overton v. Bazzetta, 539 U. S.
126, 138 (2003) (Stevens, J., joined by Souter, Ginsburg,
and Breyer, JJ., concurring) (internal quotation marks
omitted).5
Because I believe a full trial is necessary before forming a
definitive judgment on whether the challenged regulation is
reasonably related to petitioner’s valid interests in security
and rehabilitation, I respectfully dissent.
Justice Ginsburg, dissenting.
Justice Stevens comprehensively explains why the jus
tifications advanced by the Secretary of Pennsylvania’s De
partment of Corrections (Secretary) do not warrant pretrial
dismissal of Ronald Banks’s complaint alleging arbitrary
deprivation of access to the news of the day. Ante, p. 542.
Joining Justice Stevens’ dissenting opinion in full, I direct
this separate writing to the plurality’s apparent misappre
hension of the office of summary judgment.
As the plurality recognizes, ante, at 529, there is more to
the summary judgment standard than the absence of any
genuine issue of material fact; the moving party must also
show that he is “entitled to a judgment as a matter of law.”
Fed. Rule Civ. Proc. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U. S. 242, 249–255 (1986); id., at 250–251 (summary judg
ment is unwarranted “[i]f reasonable minds could differ as to
the import of the evidence”). Here, the Secretary cannot
5 In contrast to this case, the constitutional right at issue in Overton
involved freedom of association, which, “as our cases have established . . .
is among the rights least compatible with incarceration.” 539 U. S., at
131 (opinion of the Court).

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554 BEARD v. BANKS
Ginsburg, J., dissenting
instantly prevail if, based on the facts so far shown and with
due deference to the judgment of prison authorities, a ra
tional trier could conclude that the challenged regulation is
not “reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U. S. 78, 89 (1987).
The showing made by the Secretary in support of sum
mary judgment is slim, the kind that could be made to justify
virtually any prison regulation that does not involve physical
abuse. The Secretary relies on his own statement of undis
puted facts and the deposition of the prison’s Deputy Super
intendent. The deposition states that “obviously we are at
tempting to do the best we can to modify the inmate’s
behavior so that eventually he can become a more productive
citizen . . . . We’re very limited . . . in what we can and
cannot deny or give to an inmate, and [newspapers and pho
tographs] are some of the items that we feel are legitimate
as incentives for inmate growth.” App. 189, 190. The Sec
retary’s statement of undisputed facts similarly asserts that
the regulation “serves to encourage . . . progress and discour
age backsliding.” Id., at 27.
These statements, the plurality holds, are sufficient to
show that the challenged regulation is reasonably related to
inmate rehabilitation. Ante, at 531–532. But prison offi
cials “ ‘cannot avoid court scrutiny by reflexive, rote asser
tions.’ ” Shimer v. Washington, 100 F. 3d 506, 510 (CA7
1996) (quoting Williams v. Lane, 851 F. 2d 867, 886 (CA7
1988) (Flaum, J., concurring in result)). See also Turner,
482 U. S., at 98 (noting lack of evidence offered by prison
officials to support a ban on inmate marriages); Murphy v.
Missouri Dept. of Corrections, 372 F. 3d 979, 986 (CA8 2004)
(applying Turner and concluding that the Corrections De
partment’s “documented reason for censoring [a magazine] is
too conclusory to support [summary] judgment in its favor”);
Jacklovich v. Simmons, 392 F. 3d 420, 428–434 (CA10 2004).
“ ‘[T]raditional deference does not mean that courts [are to]

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Cite as: 548 U. S. 521 (2006) 555
Ginsburg, J., dissenting
abdicat[e] their duty to protect those constitutional rights
that a prisoner retains.’ ” 399 F. 3d 134, 140 (CA3 2005)
(quoting Fortner v. Thomas, 983 F. 2d 1024, 1029 (CA11
1993)).
The plurality correctly recognizes that it “must draw ‘all
justifiable inferences’ in Banks’[s] ‘favor.’ ” Ante, at 529
(quoting Liberty Lobby, 477 U. S., at 255). It then back
tracks, distinguishing “evidence of disputed facts” from “dis
puted matters of professional judgment,” and asserts that
“[i]n respect to the latter, our inferences must accord defer
ence to the views of prison authorities.” Ante, at 530.
While Turner deference can and should be incorporated into
the evaluation of a motion for summary judgment, that def
erence should come into play, pretrial, only after the facts
shown are viewed in the light most favorable to the nonmov
ing party and all inferences are drawn in that party’s favor.
See Liberty Lobby, 477 U. S., at 252–255; cf. Reeves v. Sand
erson Plumbing Products, Inc., 530 U. S. 133, 150–151
(2000).
As I see it, on the limited record thus far made and with
out the benefit of trial, “the logical connection between the
[no news journals] regulation and the asserted goal” could
be found by a reasonable trier to be “so remote as to render
the policy arbitrary or irrational.” Turner, 482 U. S., at 89–
90. The regulation denies The Christian Science Monitor to
inmates housed in level 2 of the prison’s long-term segrega
tion unit but allows them The Jewish Daily Forward, based
on the determination of a prison official that the latter quali
fies as a religious publication and the former does not. App.
179–180; 399 F. 3d, at 147. Prisoners are allowed to read
Harlequin romance novels, but not to learn about the war in
Iraq or Hurricane Katrina. The first justification cited by
prison officials for impinging on inmates’ First Amendment
rights in this way is too tenuous to be plausible. See ante,
at 543–546 (Stevens, J., dissenting) (discussing security ra

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556 BEARD v. BANKS
Ginsburg, J., dissenting
tionale); 399 F. 3d, at 142–144 (same). The second could be
recited, routinely, to immunize all manner of prison regula
tions from review for rationality. See ante, at 546–552
(Stevens, J., dissenting) (discussing deprivation/“rehabilita
tion” rationale); 399 F. 3d, at 140–142 (same).
Turner came to us after a full trial, and the Court’s opinion
in that case relied heavily on testimony elicited at trial in
evaluating the reasonableness of the regulations at issue.
482 U. S., at 91–93, 96–99. Overton likewise came to this
Court on a record made at trial. Overton v. Bazzetta, 539
U. S. 126, 133 (2003). But in this case, the defender of the
regulation invites summary judgment. All inferences are to
be drawn in favor of the prisoner opposing the regulation,
and the question is not which side has the better argument,
but whether the Secretary has shown he is entitled to a judg
ment as a matter of law. By elevating the summary judg
ment opponent’s burden to a height prisoners lacking nimble
counsel cannot reach, the plurality effectively tells prison of
ficials they will succeed in cases of this order, and swiftly,
while barely trying. It suffices for them to say, in our pro
fessional judgment the restriction is warranted. The as
serted right to read, see ante, at 543 (Stevens, J., dissent
ing), is indeed an “important one,” see ante, at 535 (plurality
opinion of Breyer, J.). Even in highest security custody,
a constitutional interest of that order merits more than pe
remptory treatment.
* * *
For the reasons stated by Justice Stevens and in this
opinion, I would affirm the Third Circuit’s judgment revers
ing the award of summary judgment to the Secretary.