dissenting.

A recalcitrant prisoner seeking an exception to a prison regulation threatens a guard to avoid compliance. The warden affirms a disciplinary violation after a prison hearing finds the words to be coercive. The Court now holds that summary judgment in favor of the defendants dismissing his civil rights suit was improper because a jury must consider the context in which inmate Hargis delivered his threatening words to correctional officer Beauchamp. The problem with the Court’s opinion is that it virtually ignores the most important aspect of the context in which the speech was delivered — in a prison. And it is the *1161 prison setting that dictates the outcome in this case.

Individuals sentenced to prison simply do not enjoy the same liberties' as ordinary citizens. Obviously, their ability to travel freely is practically negated. They can be locked up, ordered about, told when to eat, when to exercise, when to shave, when to shower, and when to sleep. They also may be deprived of their right to vote. See Richardson v. Ramirez, 418 U.S. 24 , 94 S.Ct. 2655 , 41 L.Ed.2d 551 (1974). It should therefore surprise no one that prisoners do not enjoy the same First Amendment rights as law-abiding citizens.

Nevertheless, the Court once again improperly extends the First Amendment protections of prisoners by asking the district court to reconsider its “as applied” analysis because my colleagues believe the district court may have gotten it wrong the first time. In effect, our opinion mandates that a jury be allowed to determine how coercive and dangerous Hargis’s speech was. One might have hoped we would have learned the lessons from the mistakes of our past.

In 1996, the Supreme Court reversed our ruling when we and the district court had become “enmeshed in the minutiae of prison operations” concerning prisons’ law libraries and legal assistance programs. Lewis v. Casey, 518 U.S. 343, 362 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996) (quoting Bell v. Wolfish, 441 U.S. 520, 562 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979)). The Supreme Court held that we and the district court “failed to accord adequate deference to the judgment of the prison authorities” and that the district court’s injunction was “inordinately- — indeed, wildly — intrusive.” Id. at 361-62, 116 S.Ct. 2174 .

In 1999, this Court had to go en banc, see Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) (en banc), cert. denied 529 U.S. 1018 , 120 S.Ct. 1419 , 146 L.Ed.2d 311 (2000), in order to affirm a district court’s grant of summary judgment on behalf of defendants who instituted a policy prohibiting inmates from possessing “sexually explicit material” after a panel of this Court had initially reversed the district court’s decision. See Mauro v. Arpaio, 162 F.3d 547 (9th Cir.1998), withdrawing Mauro v. Arpaio, 147 F.3d 1137 (9th Cir.1998). As we stated in the en banc opinion, “[Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the 'legislative and executive branches of government.” 188 F.3d at 1058 (citations omitted). By overruling the prison’s determination that penological interests are served by prohibiting inmates access to Playboy, the panel decision “unnecessarily perpetuatfed] the involvement of the federal courts in affairs of prison administration.” Id. (quoting Turner v. Safley, 482 U.S. 78, 89 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987)).

Just last year the Supreme Court unanimously overturned another one of our decisions in Shaw v. Murphy, 532 U.S. 223 , 121 S.Ct. 1475 , 149 L.Ed.2d 420 (2001). In Shaw , we had sought to provide special First Amendment protection to prison communications between inmates involving legal advice from jailhouse lawyers. The Supreme Court reversed our decision and warned us that courts are not to evaluate the content of a prisoner’s communication but rather only concern themselves with the “relationship between the asserted pe-nological interests and the prison regulation.” Id at 230,121 S.Ct. 1475 .

With this decision, we once again fail to follow the clearly developed analytical framework that the Supreme Court has provided for evaluating the First Amendment rights of prisoners. See Shaw, 532 U.S. 223 . 121 S.Ct. 1475 . 149 L.Ed.2d 420 : *1162 Turner, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 . Turner established that a prison regulation is valid even where it impinges on prisoners’ constitutional rights so long as the regulation “is reasonably related to legitimate penological interests.” 482 U.S. at 89 , 107 S.Ct. 2254 . The Supreme Court listed four factors to be considered when evaluating the reasonableness of the relationship between the regulation and the penological interests. First, and most importantly, there must be “ ‘a valid rational connection’ between the prison regulation and the legitimate governmental interest put forward to -justify it.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 , 104 S.Ct. 3227 , 82 L.Ed.2d 438 (1984)). If the regulation meets this first requirement, courts also consider whether inmates have “alternative means of exercising” their constitutional right; “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;” and whether there are “ready alternatives” available to the prison to meet its objectives. Id. at 90, 107 S.Ct. 2254 .

In Shaw, the Supreme Court unanimously overturned our decision in which we sought to give added protection to prisoner communications involving legal advice. See 532 U.S. at 230 , 121 S.Ct. 1475 . The Supreme Court observed that to add protection based on content, a court would have to make a value assessment of the content. See id. In order to do so, the court would have to “assume a greater role in decisions affecting prison administration.” Id. This would violate the principle that prison officials “remain the primary arbiters of the problems that arise in prison management.” Id.

While it is true that Shaw, like Turner , concerned a facial challenge to a prison regulation, the unanimous Court stated that upon remand for an “as applied” analysis, the prisoner faced a “heavy burden” in attempting to show that prison officials did not act within their “broad discretion.” Id. at 232, 121 S.Ct. 1475 . The record in this case reflects that the district court already evaluated an “as applied” challenge and properly rejected it. We should therefore affirm.

No one questions the constitutionality of an anti-coercion regulation proscribing threats by inmates to maintain discipline and good order in a prison. This is not surprising given that there are prohibitions against verbalized threats that constitute assault or extortion even by otherwise law-abiding citizens under the theory that such speech is more directly tied to an act than protected expression. See Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. Chi. E.Rev. 225, 241-42 (1992) (“The law of assault is grounded not in the communication of information (a threat, after all, is not just a statement of fact), but in the physical imposition for which the assault is a preparatory step.”); cf. United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968) (government can prohibit noneommunicative aspect of conduct unrelated to expression). Thus, no one here argues that Idaho prison disciplinary code § 02-V, which prohibits “involvement in any disorderly conduct by coercing or attempting to coerce official action,” is unconstitutional on its face. We simply do not permit the inmates to run the prison by intimidating their guards.

The district court already examined the “context of the specific facts presented in this case” and held that Hargis “failed to show that the rule against coercion as applied to him for the October 1998 disciplinary offense for verbal threats of involving an officer in litigation is not reasonably related to the legitimate penological interests of [the pris *1163 on].” (emphasis added). It did so after applying the four Turner factors to Har-gis, especially noting that Hargis had the ability to file a written grievance rather than orally threaten Beauchamp in person. The district court relied upon the state of the Ninth Circuit law at the time. See Bradley v. Hall, 64 F.3d 1276, 1281 (9th Cir.1995) (finding a difference between a prisoner’s “right to file a grievance” and a prisoner’s “open expression of disrespect or any disrespectful communication between prisoner and guard”).

The district court’s analysis was performed before Shaw was decided. Even assuming that Bradley retains life after Shaw, the district court properly addressed Hargis’s “as applied” challenge to the Idaho regulation. The assumption that Bradley lives is questionable at best, however. In Shaw, the Supreme Court criticized Bradley’s approach of “balancing] the importance of the prisoner’s infringed right against the importance of the penological interest served by the rule,” 532 U.S. at 230 n. 2, 121 S.Ct. 1475 , because “increasing] the constitutional protection based upon the content of a communication first requires an assessment of the value of that content.” Id. at 230 . Shaw warns lower federal courts not to assess the value of the content of the prisoner’s expression. But without citing Bradley that is exactly what our opinion tries to do in suggesting that a jury must now decide whether Hargis’s words were “innocuous” and “not coercive.” Op. at 1159.

There is no need to remand. The district court already considered an “as applied” challenge and rejected it. So should we.

Prisons exist to maintain order over those who have demonstrated that they are incapable of following the rules established by society. Coercion undermines that effort. Prisoners have alternative means of exercising their rights, such as by filing a written grievance rather than directing comments personally to guards. Allowing inmates such as Hargis to personally threaten or warn guards like Beau-champ to evade compliance with legitimate institutional rules would have a dramatic effect on prison life — -prisoners would be quicker to verbalize and attempt to intimidate guards, and guards would have to attempt to guess what a prisoner really meant every time a prisoner made a veiled threat. Finally, the government has few alternatives in this sort of situation. Prison officials must maintain order if they are to remain in control. The written grievance procedure available here accommodates prisoners’ rights while preventing direct confrontations between guards and prisoners.

It is not our job, or that of a jury, to guess what Hargis might have meant or might have been thinking when he verbally warned Beauchamp that if he forced Har-gis to shave with a safety blade Beau-champ’s action would be subject to court review. Prison officials conducted a disciplinary hearing and determined that those words represented coercion. It is not the legitimate role of a federal court to suggest to the warden and his officers that there is an alternative interpretation, that prison officials may have been wrong, and that a jury should determine the truth. This amounts to “assuming] a greater role in decisions involving prison administration” than courts are justified in making and violates the principle that prison officials “remain the primary arbiters of the problems that arise in prison management.” Shaiv, 532 U.S. at 230 , 121 S.Ct. 1475 .

We simply do not analyze a prisoner’s First Amendment rights the way we would the First Amendment rights of a law-abid *1164 ing citizen. Prisoners sacrifice many of their freedoms as proper punishment for their crimes. Whether inmate Hargis actually intended to threaten or coerce correctional officer Beauchamp does not matter. What does matter is that the Idaho Correctional Institution at Orofino had a necessary regulation designed to prohibit coercion; the regulation is clearly constitutional because it has a legitimate penological purpose; and prison officials reasonably determined that Hargis sought to coerce Officer Beauchamp. This determination was certainly within the “broad discretion” granted prison officials.

Hargis’s speech raises no issue of material fact; he said what he said and no one challenges that. Thus, we may affirm the district court’s ruling where it properly applied the substantive law. See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001). Neither courts nor juries have the responsibility for running prisons. Nor do they have primary responsibility for assessing the content of prisoner speech. Those duties belong to prison officials. They discharged them reasonably in this case. The district court held that as applied to Hargis the prison regulation was constitutional. The court was right.

Our opinion also errs in its analysis of the dismissal of Hargis’s retaliation and Eighth Amendment claims with prejudice. While dismissal without prejudice is the default under Fed.R.Civ.P. 41(a)(2), and Hargis was a pro se plaintiff, the district court followed the language of Fed. R.Civ.P. 41(a)(2) and only imposed “such terms and conditions as the court deem[ed] proper.” The court dismissed Hargis’s claims with prejudice, instead of without prejudice, but denied the request of the defendants to impose sanctions on Hargis. Thus, Hargis’s claims were not found to be frivolous and he did not receive a strike under 28 U.S.C. § 1915 (g). The district court properly balanced competing interests. There was no abuse of its discretion. We should also affirm the district court’s ruling dismissing Hargis’s retaliation and Eighth Amendment claims.

I agree it was too late to raise an ADA claim on appeal. Otherwise, I respectfully dissent.