Appeal from the United States District Court for the Southern District of Florida. (No. 83-8409-CIV-ARONOVITZ). Sidney M. Aronovitz, Judge.
Before Anderson and Barkett, Circuit Judges, and Young,*fn* Senior District Judge.
This case began as a pro se complaint by plaintiff-appellee Robert Lawson, filed in 1983. Counsel was appointed, and a class certified. The plaintiff class represented by Lawson (hereinafter "Hebrew Israelites" or "plaintiffs") is made up of members of the Hebrew Israelite faith currently serving time in the Florida prison system. The basis for their original complaint was that officials of the defendant-appellant, the Florida Department of Corrections (hereinafter "the Department"), refused to allow certain religious texts, published by the Hebrew Israelites at their headquarters, the "Temple of Love," into the prisons so that Hebrew Israelite inmates could have access to them. The plaintiffs seek injunctive relief. The Department claimed that the Hebrew Israelite texts at issue contain "highly-charged, anti-white, racism" and thus presented a serious threat to security and order within Florida's prisons.
Soon after this litigation began, the Department, through head chaplain Counselman, attempted to create an informal redaction policy similar to the law now in place that would allow prison chaplains to remove the most objectionable portions of incoming religious materials. See Lawson v. Wainwright, 641 F. Supp. 312, 320-321 (S.D.Fla.1986). The materials at issue in this case were returned by Counselman to Yahweh ben Yahweh, the leader of the Hebrew Israelites, and ben Yahweh was asked to remove those statements that the Department thought were a threat to prison order and security. Once these sections were removed, Counselman assured ben Yahweh, the materials would be allowed into the prisons. Id. at 321. This original redaction policy, however, was poorly defined and sporadically enforced, and at times entire documents were excluded when only portions of those documents presented a threat to prison order and security. Id. at 317-319.
This case has a tortured procedural history. In 1986, the district court held that the Department's outright ban of these religious texts violated the plaintiffs' Free Exercise rights under the First Amendment. Lawson v. Wainwright, 641 F. Supp. 312 (S.D.Fla.1986) (hereinafter Lawson I). The primary concern in the first appeal to this Court was the determination of the proper standard by which to evaluate the plaintiffs' Free Exercise claims. Lawson v. Dugger, 840 F.2d 779 (11th Cir.1988) (hereinafter Lawson II). Following this Court's 1987 decision, the Supreme Court rendered its decision in Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989), in which the Court reiterated the principle that prisoner constitutional rights claims are to be evaluated under the rational basis standard. The Department's petition for certiorari in this case was granted, and the 1987 opinion of this Court was vacated and the case remanded for further consideration in light of Thornburgh. Dugger v. Lawson, 490 U.S. 1078, 109 S. Ct. 2096, 104 L. Ed. 2d 658 (1989) (hereinafter " Lawson III "). This Court in turn remanded to the district court. Lawson v. Dugger, No. 86-5774, 897 F.2d 536 (11th Cir. Feb. 1, 1990). Again, however, a change in the law affected the relevant standard. A few days before the district court held its status hearing on remand, Congress passed the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (hereinafter "RFRA"), which purports to re-establish through statute the compelling interest test for neutral laws that incidentally but substantially burden the free exercise of religion.*fn1 Upon review, the district court interpreted the relevant official activity in this case to be an outright ban on certain incoming religious materials. Then, applying the "least restrictive means" prong of the new RFRA test to the outright ban, the district court held that the Department's activity violated RFRA. Lawson v. Dugger, 844 F. Supp. 1538, 1542 (S.D.Fla.1994) (hereinafter " Lawson IV ").
Our primary task is to flesh out the meaning of the new RFRA standard as it applies in the prison context, and in particular as it applies to this case.*fn2 Two interrelated preliminary matters require discussion: Florida's new Rule 33-3.012*fn3 governing the admissibility into Florida prisons of publications, including religious materials; and the propriety of our consideration in this appeal of the Rule's redaction policy.
I. RULE 33-3.012 AND REDACTION
In addition to the passage of RFRA, another significant change in the complexion of this case occurred after remand to the district court. On December 17, 1991, Florida amended Rule 33-3.012, inter alia, to incorporate a formal and more precise redaction policy. The portions of the Rule relevant to this case are as follows:
(4) Inmates shall be permitted to receive publications except when the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of the institution or when it is determined that the publication might facilitate criminal activity. Publications shall be rejected when one of the following criteria are met:
(e) It depicts, describes or encourages activities which may lead to the use of physical violence or group disruption;
(h) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person. If only a portion of a publication meets one of the above criteria for rejection, the entire publication shall be rejected unless the reading material is of a religious nature. In the case of religious material, the inmate shall be advised that he may receive the materials only after the inadmissible portion is removed. The inmate shall make the decision whether to return the material to the sender or to receive the admissible portions after the institution has excised the inadmissible material, and the inmate may appeal the institution's determination that the material must be excised or returned. The institution shall not take any action to excise or return inadmissible reading material until the inmate's appeal is concluded or the time for appeal has passed.
FLA.ADMIN.CODE § 33-3.012(4) (1995) (emphasis added).*fn4 Appeals from decisions to redact certain sections from religious materials are heard by a literature review committee made up of the Assistant Secretary of Operations, one superintendent, one security administrator, the library services administrator and one institutional librarian. FLA.ADMIN.CODE § 33-3.012(2).
The plaintiffs contend that the Department did not specifically argue redaction in its briefs to the district court at the original trial nor on remand, and did not do so until the Department's motion for rehearing. The plaintiffs argue accordingly that the Department has waived the issue. The district court agreed with the plaintiffs and denied the Department's motion for rehearing. The district court declined to consider redaction, relying instead on the procedures in use by the Department when this litigation began in 1983, which the district court construed to be an outright ban on the religious materials introduced at trial.
This Court interprets the Department's motion for rehearing on the redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v. Bd. of Comm'rs of Palm Beach County, 956 F.2d 1017, 1020 (11th Cir.1992). We review the district court's denial of the Department's motion for rehearing for abuse of discretion. O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992); American Home Assur. Co. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1238-39 (11th Cir.1985). In American Home, we affirmed a district court's denial of a Rule 59(e) motion that raised for the first time a choice of law issue. American Home, 763 F.2d at 1239. We noted that, "the decision to alter or amend judgment is committed to the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion." Id. at 1238-39.
Several reasons persuade us that the district court abused its discretion by failing to consider redaction, which stands at the core of the current Florida regulation. In our judgment, it would be impossible to evaluate the facial constitutionality of Rule 33-3.012, and its compatibility with RFRA, without considering redaction, which is the essence of the Rule's policy toward religious publications. This case involves only injunctive relief. Therefore, the only viable issues are the facial validity of Rule 33-3.012, and its validity as applied.*fn5 Because these issues cannot be intelligently assessed without considering redaction, justice requires that we do so.
Finally, a federal court order dictating the security-related activities of state prison officials raises serious comity concerns. The maintenance of prison security, which is central to this case, is a matter of immense importance to the State of Florida and, of course, responsibility for prison security is committed to the State. Even if the Department's deficiencies in the presentation of this issue to the district court might lead us to impose waiver in some other context, interests of comity combine with the foregoing factors to persuade us otherwise in this case.*fn6 Assuming, as we hold below, that Florida's Rule 33-3.012, with its redaction policy, is facially valid, it would constitute manifest injustice to enjoin state prison officials from the exercise of their duties to maintain prison security based on the ...