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The Court of Appeals' decision in the present case refers to a "First Amendment right of intimate association." See Bazzetta v. McGinnis, 286 F. 3d 311, 316 (CA6 2002). The court mistakenly conflated two distinct principles. While there is a First Amendment right to expressive association and there are constitutional protections for intimate family association, these rights arise from different parts of the Constitution. First Amendment association protects expression and belief, while family association protects other interests outside the First Amendment. While the source of the latter right is less than crystal clear, it appears these interests are protected by substantive due process, and the regulation should be analyzed under this branch of constitutional law. While the Sixth Circuit also cites substantive due process cases in support of its holding, see id., at 317 (citing Moore v. East Cleveland, 431 U. S. 494 (1977) and Pierce v. Society of Sisters, 268 U. S. 510 (1925)), it does not change the decision's First Amendment focus. The mixing of First Amendment and substantive due process concepts detracts from the clarity needed in this contentious area of law. The rights to " 'expressive association' " and " 'intimate association,' " see Dallas v. Stanglin, 490 U. S. 19, 25 (1989), are different and should be treated separately.
The First Amendment right to expressive association was first explicitly recognized in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). From its inception, it has been a right grounded in belief and expression.
"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." Id., at 460 (citations omitted).
The beliefs protected by this right are broad, "political, economic, religious, or cultural matters," ibid., but the First Amendment associational right is still grounded in the core First Amendment values--protecting participation in the "marketplace of ideas." See Widmar v. Vincent, 454 U. S. 263, 267-268, n. 5 (1981).
The difference between First Amendment expressive association and substantive due process family association was explained in Roberts v.United States Jaycees, 468 U. S. 609 (1984).
"Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties." Id., at 617-618 (emphasis added).
The First Amendment right of expressive association is limited to groups engaging in "expressive activity," but it "is not reserved for advocacy groups." Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). However, incidental expressive activity is not sufficient to invoke constitutional scrutiny of regulation of a group. "It is possible to find a kernel of expression in almost every activity a person undertakes . . . ." Dallas, 490 U. S., at 25. The purpose of the right of expressive association is to protect the organization's ability to advocate viewpoints. SeeBoy Scouts, supra, at 650. "It is only when the association is predominantly engaged in protected expression that state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard." Roberts, 468 U. S., at 635-636 (O'Connor, J., concurring in part and concurring in the judgment). As important as the right to intimate association is, it has nothing to do with the presence of a collective voice in the marketplace of ideas.
Because family association is not a First Amendment right, see 4 R. Rotunda & J. Nowak, Treatise on Constitutional Law §20.41, p. 522 (3d ed. 1999) (noting due process and connection to right of privacy as source), it is inappropriate to categorize the right claimed by the prisoners in the present case as a First Amendment association right. Any tangential expressive function of the family is satisfied in this case through the existence of alternative means of communication. Since the regulations do not prohibit letters, phone calls, or meetings with counsel, the prisoners' First Amendment rights remain intact. Cf. Pell v. Procunier, 417 U. S. 817, 823 (1974) (importance of alternate means of communication).
It is important to keep the First Amendment and the substantive due process analyses distinct. The First Amendment has a favored position in constitutional law. It is considered "the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U. S. 319, 327 (1937). "Freedom of press, freedom of speech, freedom of religion are in a preferred position." Murdock v. Pennsylvania, 319 U. S. 105, 115 (1943), overruled on other grounds in Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 21 (1989). The favored position is reflected by how this Court reviews First Amendment challenges to government actions. In order to protect the most revered constitutional right,
"the Court has applied a narrowed presumption of constitutionality, strictly construed statutes to avoid limiting First Amendment freedoms, restricted prior restraint and subsequent punishment, relaxed general requirements of standing to sue and generally set higher standards of procedural due process in order to give vitality to those freedoms over ordinary governmental functions." Rotunda & Nowak, supra, §20.7, at 258.
Since this is a prison case, not all of these advantages may be available for the prisoners and their families. Cf. Pell, 417 U. S., at 822 (incarceration leads to a loss of constitutional rights); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 125-126 (1977) (the most obvious First Amendment right lost by incarceration is association). But it is still important to keep the First Amendment and substantive due process distinct. Substantive due process has a controversial background and does not share the First Amendment's favored position. See Part II-A, infra. Confusion between the First Amendment and substantive due process rights of association could spill outside prisoner rights, needlessly complicating the law and elevating the right to family association beyond what this Court intends. These two very different rights should be treated differently, and the First Amendment claims in this case should be dismissed.
Protection of the nonexpressive component of relationships is found in this Court's substantive due process decisions. This aspect of due process typically protects family relationships. See Roberts v. United States Jaycees, 468 U. S. 609, 619-620 (1984). Several aspects of family life come within this right, including "marriage, childbirth, the raising and education of children, and cohabitation with one's relatives . . . ." Id., at 619 (citations omitted). This Court has not yet recognized a substantive due process prison visitation right. The closest this Court has come to recognizing a right to visitation is when a plurality of this Court recognized a right to cohabit with relatives in Moore v. East Cleveland, 431 U. S. 494, 505-506 (1977). This is too slender a reed to support a right to prison visitation. With respect to substantive due process, prison visitation is a privilege, not a right.
Before considering whether to extend a right of family association to prison, this Court should consider the many difficulties posed by the doctrine of substantive due process. Beyond any oxymoronic problems posed by the right, see Washington v. Glucksberg, 521 U. S. 702, 756 (1997) (Souter, J., concurring); United States v. Carlton, 512 U. S. 26, 39 (1994) (Scalia, J., concurring), lies the more fundamental problem of the indeterminancy of substantive due process. Because the rights deemed fundamental under substantive due process are not moored in any specific constitutional guarantee such as the Bill of Rights, this doctrine runs the risk of being a vehicle through which the personal preferences of individual judges are transformed into law. Courts and commentators agree. A particularly telling critique of this Court's fundamental rights jurisprudence is that the task of separating fundamental from nonfundamental rights "requires the judiciary to take normative and moral positions that cannot be demonstrated." Grano, Judicial Review and a Written Constitution in a Democratic Society, 28 Wayne L. Rev. 1, 25 (1981). Even though this Court has broken from the subjective natural law analysis found between the 1880's and 1937, its fundamental rights analysis remains subjective, and the modern opinions justifying substantive due process are "confusing." See 2 R. Rotunda & J. Nowak, Treatise on Constitutional Law §15.7, p. 627 (3d ed. 1999). Lacking a reliable means of reining in judicial discretion makes substantive due process an often dangerous field for this Court to navigate. See Albright v. Oliver, 510 U. S. 266, 281 (1994) (Ginsburg, J., concurring).
This fear is justified. Some of the worst decisions have come when courts "substitute their own pleasure to the constitutional intentions of the legislature." See The Federalist No. 78, pp. 468-469 (C. Rossiter ed. 1961) (A. Hamilton). Due process was invoked to create a constitutional right to own slaves in a territory where Congress had abolished slavery. See Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 450-451 (1857). Some of the most notorious attempts by this Court to have the final say over economic policy were based on substantive due process. In Lochnerv. New York, 198 U. S. 45, 53, 57 (1905), the doctrine allowed this Court to find a constitutional right to liberty of contract that overrode a statutory maximum on working hours, while in Adkins v. Children's Hospital of D. C., 261 U. S. 525, 559 (1923) substantive due process allowed this Court to strike down a minimum wage law. See Glucksberg, 521 U. S., at 760-761 (Souter, J., concurring).
This Court has become understandably reluctant to expand the frontiers of substantive due process.
"But we 'have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.' Collins [v. Harker Heights], 503 U. S. [115], 125 [(1992)]. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 'exercise the utmost care whenever we are asked to break new ground in this field,' ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion)." Id., at 720 (majority opinion); see also County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998).
The reluctance to expand substantive due process should be reinforced against efforts to expand it into our prisons. While not every right currently recognized as fundamental is lost by imprisonment, see Turner v. Safley, 482 U. S. 78, 95 (1987) (right to marry), prison is a particularly inappropriate context for the creation of substantive due process rights. (2) Constitutional protections are necessarily limited in prison. See Shaw v.Murphy, 532 U. S. 223, 229 (2001). "The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives--including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U. S. 342, 348 (1987). Deterrence is a chief purpose of imprisonment. See Rhodes v. Chapman, 452 U. S. 337, 352 (1981); 18 U. S. C. §3553(a)(2)(B). A prison that fails to punish cannot deter and thus fails its basic function. Finally, federalism also limits federal judicial supervision of state prisons in the name of prisoner rights. Prisons are central to the state's most important function, protecting its citizens. "It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons." Preiser v. Rodriguez, 411 U. S. 475, 491-492 (1973). Therefore, "the federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States." Meachum v. Fano, 427 U. S. 215, 229 (1976).
Running a prison is an extraordinarily difficult task. Administrators have to ensure punishment, maintain security, and respect the rights retained by the prisoners. Recognizing the many problems of prison administration, this Court gives considerable deference to the prison administrators. "Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 126 (1977). Deference is necessary
"if 'prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.' Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." Turner v. Safley, 482 U. S. 78, 89 (1987) (quoting Jones, 433 U. S., at 128).
Unfortunately, there are too many examples of lower federal courts failing to give proper deference to the prison administration. Courts have dictated the type of detergent (Boraxo) and its dilution (one-half cup per gallon of water) used in cleaning, see M. Boot, Out of Order 138 (1998), and ordered that prisoners be allowed to retain six issues of monthly magazines for up to three months, see Chilton & Talarico, Politics and Constitutional Interpretation in Prison Reform Litigation: The Case of Guthrie v. Evans, in Courts, Corrections, and the Constitution 117 (J. DiIulio ed. 1990), or declared a right to have a subscription to Playboy and possess hot pots in cells. See Hook v. State of Arizona, 120 F. 3d 921, 923 (CA9 1997).
Sometimes these excesses are cured by higher courts. The Ninth Circuit modified the extraordinarily invasive District Court order in Hook. Seeid., at 926. In Lewis v. Casey, 518 U. S. 343 (1996), this Court struck down an order that
"specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minimal educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates (to be prepared by persons appointed by the Special Master but funded by ADOC), and similar matters." Id., at 347.
These are not isolated cases. "Rather, the prison cases constitute a rapid, inexorable procession of discrete decisions, formulated by federal trial courts throughout the nation and affirmed repeatedly at the appellate level." M. Feeley & E. Rubin, Judicial Policy Making and the Modern State 19 (2000). "The Constitution charges federal judges with deciding cases and controversies, not with running state prisons. Yet too frequently federal district courts in the name of the Constitution effect wholesale takeovers of state correctional facilities and run them by judicial decree." Lewis, 518 U. S., at 364 (Thomas, J., concurring). The results are often disastrous to society, administrators, guards, and even the prisoners. See W. Hagedorn, The Consequences of Federal District Court Intervention into Prisons and Jails: Philadelphia, Texas, and Arizona 2-7 (Brookings Institution 1995); DiIulio, The Old Regime and the Ruiz Revolution: The Impact of Judicial Intervention on Texas Prisons, in Courts, Corrections, and the Constitution, supra, at 51, 69-70; Engel & Rothman, The Paradox of Prison Reform: Rehabilitation, Prisoners' Rights, and Violence, 7 Harv. J. L. & Pub. Pol'y 413, 431 (1984).
The wholesale importation of substantive due process concepts into prison would guarantee even more judicial meddling. The imprecisely defined guarantees of the Eighth Amendment's cruel and unusual punishment prohibition have already been a fertile source of judicial intervention into prisons. See Cripe, Courts, Corrections and the Constitution: A Practitioner's View, in Courts, Corrections, and the Constitution, supra, at 271-272. Substantive due process poses greater risks. With less textual mooring than this Court's Eighth Amendment jurisprudence, it is more likely that courts will substitute their version of the common good for what the Constitution demands. This Court's natural wariness about extending substantive due process should be sharpened in the context of prison litigation. Although Turner demonstrates that not all substantive due process guarantees are lost by imprisonment, this Court should be most reluctant to extend this doctrine any further inside the prison. A conviction that comports with the requirements of procedural due process necessarily places severe limits on one's rights under substantive due process.
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2. There is one fundamental right that is relevant to prison, the right to be free from restraining individual freedom through incarceration.
SeeDeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 200 (1989). A valid conviction extinguishes this interest. See Reno
v.Flores, 507 U. S. 292, 316 (1993) (O'Connor, J., concurring).