Prison regulations or practices that affect a prisoner's legal mail are of particular concern because of the potential for interference with a prisoner's right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). When the incoming mail is “legal mail,” courts “have heightened concern with allowing prison officials unfettered discretion to open and read an inmate's mail because a prison's security needs do not automatically trump a prisoner's First Amendment right to receive mail, especially correspondence that impacts upon or has import for the prisoner's legal rights, the attorney-client privilege, or the right of access to the courts.” Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003) citing Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) and Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).
“In an attempt to accommodate both the prison's needs and the prisoner's rights, courts have approved prison policies that allow prison officials to open ‘legal mail’ and inspect it for contraband in the presence of the prisoner.” Sallier at 874, citing Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (upholding such a policy against a Sixth Amendment attorney-client privilege claim and a 14th Amendment due process claim based on access to the courts).
“Not all mail that a prisoner receives from a legal source will implicate constitutionally protected legal mail rights.” Sallier at 874. Nevertheless, “even constitutionally protected mail can be opened (although not read) and inspected for contraband. The only requirement is that such activity must take place in the presence of the recipient, if such a request has been made by the prisoner.” Id.
In Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992), the Sixth Circuit addressed an opt-in system in which prison officials could open any mail sent to a prisoner unless the prisoner affirmatively requested that “privileged mail,” defined by the policy as mail sent by a court or by counsel, be opened in his presence. The court found that the opt-in system was constitutionally sound as long as prisoners received written notice of the policy, did not have to renew the request upon transfer to another facility, and were not required to designate particular attorneys as their counsel. Id. If such a system is in place, the Sixth Circuit has held that “[a]s a matter of law, [prison officials] cannot be liable for having opened mail, even if it is ‘legal mail,’ prior to the time [the inmate] made his written request to have such mail opened in his presence.” Sallier, 343 F.3d at 875.