Herman Jackson, Jr. v. James B. Godwin, Etc.

petitioner inmates white GOLDBERG, Before TUTTLE and any newspaper free to choose Judges HOOPER, District Circuit long it did not fall within Judge. so as desired prohibit- one or both of above-named categories. petition contained ed Judge: TUTTLE, Circuit pe- prison superintendent’s answer is a Petitioner Herman Jackson twen- request, asserted which answer titioner’s ty-seven year-old Negro a who has been only subscriptions years prisoner for at Flor- seven over permitted prisoner’s hometown were Prison sentence of death ida State under maga- and, requested rape. the crime Petitioner zines, Death inmates on Row were lodged security prison’s maximum Esquire.” permitted “to have popula- area, Unit, which has a East alleged petition further Jack- of, 1,100 tion about one-third white-oriented had received son prison’s population. Approximately one- Washington months, Post for three population Unit half of the East Tampa for nine Tribune Times Negro. and of the as a whole is months, four the Gainesville Sun Row, Jackson cell resides Death Petersburg months and St. one-half some seventeen others similar- block with hearing months, evidentiary Times, Sunday At be- issue, a full held for three fore the district court determine and also averred that petitioner’s allegations, Negro newspaper, merits of it was The Am- received the regulations developed News, weekly published that the rules and sterdam out adopted by City, authorities under until New York officials dis- delegated authority pro- Florida newspaper. law it was covered that magazines pris- to petition a list of which vided that as a result of The stated subscrip- being only newspa- oners were restricted their to forced read weekly being magazines pers tions. This list consisted of the and and denied Report World publications, petitioner of V. S. News and issues access to Sports Illustrated, monthly pub- kept ignorant and as a was and unin- Digest, of Reader’s National lications formed as to news and events in the Geographic, Life, Negro community. petition request- and the semi- Outdoor The Saturday Evening Post, monthly pris- ed the six district court to restrain and denying petitioner year of Puz- issues a Pocket Crossword on officials ac- regulations Negro publications pro- zles. rules cess non-subversive The and also prisoner petitioner specifically per- be and that vided that could subscribe Sepia Ebony, newspaper choice, mitted Tan one his but that to read and magazines Pittsburgh newspapers pub- and Courier choice was restricted to prisoner’s newspaper and other non-subversive lished in home town. Ne- gro newspapers. Superintendent as- Assistant Godwin part played had no serted that race The authorities’ defense was regulations petitioner’s rights and there was no con- that that not been had vio- (1) in the selection of scious discrimination lated control mail was an reading selected part materials but those were of the administration essential “general publications prison discipline; (2) aimed aat cross- maintenance of He power section of Americans.” that stated administrative the form control applied reading the hometown rule matter within state institu- necessary prisoners represented prisoners clearly all tions for the use by Fla.Stats., administrative decision “draw forth set 944.11 F. Section urged S.A., adoption line” somewhere. Godwin further which authorized regulations and regulations the reasonableness of the as the Board of Com- justified them basis that strict might state missioners of institutions necessary no by to insure that proper 945.21(1) control (j) deem Section publications containing regulation elements of vio- specifically authorized prison, for racial prisoners; (3) lence or sex entered the mail to and from general prison life would pursuant tensions and statutory authority, to the valid extremely regulations controlling prison discipline diffi- rules and make ad- reading access to such ma- mission cult if material has had been adopted, specifically authorizing that terials. He further asserted regulations prison superintendent were administrative efforts if in to refuse mail problem cope cen- opinion, with bulk and his such mail would detrimen- sorship offi- good and maintained discipline tal order and magazines being “reports im- granting cials authority officials the to set types pregnated up specific materials; with LSD and reading list of dope” prisons. (4) in other magazines periodicals sought which Jackson “of a known re- district court denied security character to induce lack of grounds lief on the control penal system because important part nature of the ad- mail was an unhealthy incite and stimulate in an man- disci- maintenance of ministration ner, duty and such pline matters control have it was of the fed- not the long recognized purely general superintend been to be within eral courts to prisoners, administrative discretion of the cus- administration state any prison.” todian of would interfere courts regulations only- arbitrary capricious rules and enforcement of ble to decisions by prison unduly in extreme cases: officials or to restric- regulations. Note, tive See “Respondent affirmatively has Note, Law Yale Journal 506 hearing shown at the the method (1962). 110 U.Pa.L.Rev. 985 There has reading selection materials growing recognition been the that “[a] arbitrary accomplished in an prisoner retains all the of an ordi- discriminatory sys- manner, nary except expressly citizen those way tematic to benefit all those incar- necessary implication, taken from him prison. cerated in state broad Reichard, Coffin law.” scope magazines reading and other (Sixth 1944). Circuit, material available has racially not been to be shown directed Acceptance of the fact in any manner. Petitioner has failed carceration, because of inherent admin prac- in his burden to show that problems, may istrative necessitate manifestly complained tices of are dis- many rights privileges withdrawal of and criminatory in violation of 42 U.S.C. preclude recognition by does not 1983.” § duty protect prisoner courts of a We must reverse. from unlawful and onerous treatment of that, itself, punitive a nature adds “(L)awful in It is true legally measures to those meted out brings necessary carceration about the court. is “[I]t well established that privi many or limitation of withdrawal not do lose all constitu leges rights, justified by and a retraction rights tional Due Process underlying penal the considerations our Equal Protection Clause Four system.” 1948, Johnston, Price v. 334 pris teenth them Amendment follow into 266, 1049, U.S. 68 S.Ct. 92 1356. L.Ed. protect son and them there from uncon grounded necessity “It is a rule part stitutional action sense, authority, common as well as carried authorities under color of out discipline the maintenance of in a [citing Washington state cases].” law. is an function executive with which Lee, (M.D.Ala. F.Supp. 327, 331 v. 263 judicial ordinarily branch will inter 1966), per 333, aff’d curiam 390 U.S. Pegelow, 196, fere.” v. Sewell 994, 88 19 1212. L.Ed.2d S.Ct. (Fourth Circuit, 1961). dep 197 Some necessary expected rivations a are Supreme Court has declared inval- being penal result of an of a insti inmate prison regulations id such state as those tution, provide for which institution must requiring prisoner’s legal a documents to custody, maintenance, discipline approved are officials before optimistically, rehabilitation those parte to be in Ex forwarded to the courts who have violated the of the sov laws Hull, 546, 640, 312 U.S. 61 85 L.Ed. S.Ct. ereign. Riddle, In 1034. also re See 57 Cal.2d long 848, Cal.Rptr. However, way 472, 22 come 372 F.2d 304 we have a (1962). prisoner equal pro- from A is some earlier attitudes denied toward rights following: prevent tection the laws if officials as the taking appeal. has, timely “He him from a con- Coch- [the felon] convicted sequence crime, only Kansas, ran v. 316 of his forfeited State U.S. rights 1453; liberty, personal his all 62 86 L.Ed. Dowd v. his S.Ct. States, Cook, except United ex 340 those which the law in its human- rel. U.S. 206. ity being regulation assessing parole A is for state accords him. He the time board year prior an additional slave of State.” Com- of incarceration Ruffin v. monwealth, (21 Grath) upon parole any 792 to consideration for 62 Va. state prisoner 1871). many who files for cor- Prisoners suffer other writ habeas pus deprivations denied, kinds of which is held to be a de- which are not nec- essary rights, pa- struc- nial result of the institutional of constitutional and the enjoined prisons enforcing ture role but rather are attributa- board was from

533 deprivations, leged physical discrimina- regulation. Avery, F. Smartt v. 370 this religious wearing of 1967). tion as to both the (Sixth Circuit, It im- is 2d 788 permissible religious consultation with regu- medals and to officials grievance suppression advisers, deny prisoner lations to access privileges accorded the letters —all managed prisoner courts has unless that constitutionally sig- prisoners. Thus the Ragan, 1945, to obtain White v. counsel. questions of interference nificant 762, 65 87 L.Ed. S.Ct. religion, practice discrimination Spires Dowd, note 1. also v. See religion, practice discrimina- (Seventh Circuit, F.2d 661. 271 1959). religion were raised. tion on the basis allegations prisoner’s A of beat- declared: Court Sewell ings torture have been held state Rights a claim Civil Acts. under the Sie- beyond dispute that certain “It gel Ragan, F.Supp. 996, (N.D. rights citizenship privileges of 111.1949); Garrison, F. Gordon v. prisoners, but it has withdrawn Supp. 477. entering upon held that never been entirely all of bereft of one pertinent petitioner’s Even more every pro- rights his and forfeits civil recognized case are cases that have those (291 198) F.2d at tection of law.” safeguards that constitutional are intend- order of dismissal The court reversed the protect citizens, ed cluding all in- hearing mer for a on the remanded especially against prisoners, of- States, citing its, the statement of United arbitrary, partic- ficial conduct which is 662, Fay, 669 F.2d rel. Marcial v. ex 247 ularly in the of area racial discrimination cert, den., (2 Cir., 1957) 355 U.S. deprivation of First Amendment prop 274, for the 2 L.Ed.2d 78 S.Ct. involving In freedoms. recent cases play fast and-loose must not osition, “We Muslims, Black the courts have held that rights in the constitutional with basic complaint alleged infringement which efficiency.” of interest administrative religious rights presented of freedom and a claim which courts the would review involving case, similar the In Pierce Pegelow, supra, In the merits. Sewell complaint, extraordi- court noted the the Vallee, (2 293 Pierce v. La F.2d 233 religious nary complaint of of a character Cir., 1961), pe- federal courts held persecution: alleging discriminatory tition treatment may view with be the “Whatever religion stated cause of ac- regard ordinary prison problems of entitling plaintiffs tion the Black Muslim however, discipline, think that a we Rights to relief under the federal Civil religious charge persecution falls Segregation and discrimination Act. category. quite See a different merely because of beliefs could be Alabama, U.S. 326 Marsh v. State of justified by prison inherent structural 90 L.Ed. 265] S.Ct. [66 systematic considerations. C., McCormick, S. Follett v. Town 717, 88 L. S.Ct. [64 Sewell, In district court dis- had Commonwealth Murdock v. 938] Ed. complaint grounds missed the on the Pennsylvania, [63 319 U.S. jurisdiction it was without entertain 870, 87 L.Ed. As 1292]. S.Ct. Supreme petition alleged because the matters pointed out, there Court has discipline related conduct religion conscience freedom of prison internal affairs of the ‘preferred’' is one the fundamental exclusively authority within the guaranteed the Constitu- freedoms Department. The com- the Executive approach decision tion. must We plaint charged all had the Muslims (293 in mind.” with that admonition had been in isolation institution 235). F.2d at privileges deprived of institutional judgment of the hostility The court reversed for no reason than the other hearing on persons ordered a court and officials toward of district complaint merits. The further al- faith. 534 Clemmer, F.Supp. implementing decision, In Fulwood v. cases unmistakably it (D.C.1962), the court found that clear that racial discrimi- prisoner by governmental even where the had committed nation authorities proclaiming religiously- public the offense the use of facilities cannot tol- in an F.Supp. 327, derived racist doctrines inflamma- erated.” The 331.

tory setting, solitary confinement and Court it stated that could of no conceive prisoner exclusion of more than prison security consideration of or dis- years general prison popu- two lation, from the cipline which the constitu- would sustain denial of usual recreative tionality of state that on their statutes facilities, the rehabilitative denial required complete permanent face religion allowing exercise of while segregation. his freely to such exercise religions, inmates of Toyster, In Rivers v. prison- and the transfer (Fourth Circuit, 1966) the district court pur- er because of his faith and for the prisoner’s petition had equitable dismissed pose suppressing breaking up plenary relief without a hear- religion prison, Muslim amounted ing ground on the it set forth no punishment reasonably related justiciable issue because dealt with prisoner’s infraction the internal administration of the state rule. The court condemned two other prison system petitioner where the deprivations: chapel denial of lawfully complaint incarcerated. The al- to Black Muslims a violation facilities leged prison superintendent that the regulations requiring public facili- right denied the to receive persons ties to be made available to all Negro newspaper, a non-subversive religion regard without to race or and Chicago Defender, because he was a Ne- encourag- because the authorities gro, permitting while inmates to supported holding religious ed and newspapers. receive white-oriented services in for other denomina- Appeals Court of for the Fourth Circuit tions, prohi- the confiscation and reversed, holding petitioner’s that religious bition of Muslim as dis- medals rights abridged constitutional had been violating crimination the Commissioner’s equal protec- in the denial to him of his prohibiting order all discrimination on rights tion under the Fourteenth Amend- religion the basis of or race also be- right ment since he a denied a cause the authorities sanctioned even Negro being granted which was to white supplied prisoners such medals to of oth- prisoners. The court stated that faiths, confiscating er while Muslims prisoner’s right to receive and read non- grounds they “sym- medals on the were subversive in while state bolic of the Muslim doctrine of hate prison only specifically granted was not prison community tend to create in the by alleged to him state law but dis- disruptive race tension and influences.” crimination a involved constitutional McGinnis, See also Brown v. 10 N.Y.2d right which overrode the court’s reluc- 225 N.Y.S.2d 180 N.E.2d 791 prison tance to interfere with adminis- (1962). discipline: tration and “Nor we do see give Two weight other recent cases present posture in case its as involv- Washing- Jackson’s In cause. ing prison discipline.1 a matter of The Lee, supra, ton three-judge a district prison superintendent may not resort segregation court struck down racial in acts of racial discrimination in the ad- prisons, declaring Alabama state that prison.” ministration of the F.2d “Since Brown v. Board of Education [of Topeka,] 594. court remanded for a [74 S.Ct. (1954), hearing L.Ed. and the 875] numerous on the merits. (loos complaint petitioners 1. The a disclose oven misconduct or that the prison newspaper contention that authorities involved was subversive. punishment the denial was an act of study complete in indifference Thus, it seems that in clear prison popula- half arbitrary interest of one official action in the area of namely tion, Assistant prisons which involves half. administration no Superintendent testified that Godwin of inmates to the constitutional any attempt Negro- made include and to be free from racial discrimination any publications, nor in- enjoy “preferred” oriented were freedoms of the any responsible Negro quiries made of First Amendment will shrink courts reading scrutinizing inmates as to interests: from administrative actions. support judicial review Additional “Q. you happen to whether Do recall proposition found if can be in the magazine periodical any or or serving prisoner “pay time to his which, permitted newspaper was society,” any debts further restraints might you say, to- was oriented deprivations in of that inher excess reader? ward normal ent the sentence Really, I know as “A. don’t were subject structure of life should be basis; on that considered even judicial scrutiny. Furthermore, to the that. didn’t even consider we regulations de extent just that —” assumed We signed prisoners to teach the to live magazine se- Godwin testified that conformity society, norms of sought “uplifting,” lection committee sporadic discretionary enforcement maga- “entertaining and educational” regulations, appears unreasonable publica- they prohibited zines and us, likely contempt is more to breed “incite and tions which stimulate would respect for, law than and obedience to unhealthy an manner” because Unrestricted, arbitrary it. and unlawful “sexy spicy” or which con- material eventually treatment would concerning unrest racial tained articles discourage prisoners cooperating aggravate racial- would or violence which their rehabilitation. 72 Yale Law Jour problems disciplinary tensions nal 518-525. prison. restricted Upon newspaper careful examination be- one hometown choice of record, we find that offi administra- that was convenient cause arbitrary cials have been in the enforce point because the and also cut-off tive application ment and hometown felt authorities magazine regulations. find We also most interest should have the news necessary effect result prisoners. regulations, arbitrarily, such even if not are evi- and conclusions facts Several though even-handedly enforced, and is hometown the record. from dent peti in racial discrimination of violation enforced, strictly newspaper not rule is rights. tioner’s Fourteenth Amendment publi-’, in this results white-oriented and prison It is clear also officials sup- plentiful being in received cations heavy justify have met burden of Negro publications are exclud- ply while ing resulting either the racial discrimina example, three white- there are For ed. resulting peti tion or curtailment of newspapers Florida state-wide oriented tioner’s First freedoms and Amendment can- available enjoyment equal of denial to sub- been able Prisoners have teen. privileges other, white, and and afforded newspapers from other to white scribe prisoners. petitioner fact, In their hometown. than at different that he every giv- Jackson testified If benefit of were the doubt non-hometown to four good times subscribed of en the assertions faith ranging periods newspapers for officials, in than con- white order to find tes- months. Godwin nine discrimination, appar- from three to it racial' scious sub- that short-time posture to the effect tified ent at best the “pro- permitted scriptions creating but applying were in officials longed” subscriptions. magazine newspaper rules is one Evening acceptable inmates assertion that Post Petitioner’s were a more Negro Ebony character. He allowed to receive news- testified that were paper objectionable au- it contained articles Amsterdam News until because entitled, such as that in it evidence “Need- thorities that was discovered Communication,” ed—More Human went uncontroverted. deplores of, which in actual lack operation fact rule the hometown and calls for more communication be- Jackson would allowed hope expresses tween the races Pittsburgh Courier’s Florida receive through such communication racial edition, Courier, provided the Florida problems and social will be solved. God- guidelines course, pro- it met the other win maintained that the article showed hibiting violence, only peti- if sex and only angle.” Sepia “one A in issue evi- publi- tioner from its hometown story entitled, dence contained “Little cation, Miami, petitioner’s because but Later,” declared, Ten Years fifty away Rock: hometown was miles West painful “After a decade transforma- Beach, Palm he could not receive it. bigotry ‘city ignorance, tion from The record also shows that the news- emerges dignity pride,” hate’ with papers magazines allowed analyzed praised and the article ath- coverage carried extensive riots “big letic achievement the schools as a news-worthy events, and other such even equalizer” removing racial barriers point where the district court not- promoting understanding and harmony. racial judicial ed that it would take notice compan- Godwin stated that a coverage. such ion entitled article “God Is With the Is- loosely applied such a With hometown objectionable raelis” was because it newspaper rule, which results in white- something showed or “violence that na- newspapers apparently being oriented plentiful in ture.” to, supply and circulation comparison, copy For News U.S. among, inmates, strong inference Report approved and World on Godwin’s Negro- arises of conscious exclusion of list was introduced. The first six arti- they oriented Negro-oriented, because are (1) cles were entitled as follows: “Loot- prevention ing, Burning War”; (2) reading Guerrilla from —Now Negro. testimony “Anarchy Big Growing are censorship Godwin’s “spicy as to Threat to Cities sexy” material Question”; —Tolerance for Rioters in articles of unrest violence social (3) “What ‘Black Power’ Leaders De- are bears on the inference that can be drawn manding” ; (4) “Black Militants Talk of Negro-oriented viewpoints con- (with pictures Guns and Guerrillas” sciously maintained excluded. Godwin quotes gen- and the extensive from two question publications in that the erally recognized leaders); militant material, prohibited contained such Speech “A That Touched a Tender Nerve apparent material in a that the same Congress Analysis House Member’s —a publication met white-oriented (Rep. of Recent Riots” Thomas G. Aber- approval committee’s and that nathy, Mississippi, Democrat of de- publications were the ones that to nouncing government the federal and the fail. meet the tests and the were ones major political parties two and their “bidding” testimony applica- for the black vote Godwin’s as to the leaders blaming such); guidelines the riots on tion of the sex and violence Tense, Country accepted publications “Not All Trou- This Is list and to of enlight- (survey rejected Ebony Sepia places things bled” of is where are “right” ening. America, objec- The essence of Godwin’s of tension and free Sepia turmoil, tions in to sex in the issue evi- where “women and children don’t worry along walking dence was a small advertisement and a have to about picture women, though by up- he as- “populated tribal streets” and which are pictures Saturday standing, lawabiding serted the of women in people who look

537 happening receipt when their at what is with astonishment was then terminated by prison major many at the and wonder officials. in cities up high tendency to stir officials penetrating is some There truth to population.” elements of the least stable petitioner’s the statement found in brief entitled, major are articles Three other requested Negro publica- that as Stop Ideas on How to Riots “LBJ’s tions, prevailing only “the that ethic is Meaning Cities,” Politics: “Riots and through organ- political hard work and 68,” Do About Crime and “What Negroes ization have been able to make * * page in U. The full editorial S.” progress short, only In *. major Lawrence, publisher another David thing distinguishes Ebony which feature, deplored to use “refusal” Sepia approved publications is that governmental “stop power wave they Negroes, are written about with a mobocracy.” two In addition point of view aimed aat audience.” in the Pacific on the defense line articles compelling Over and above the infer- remaining War, the and the Arab-Israeli ence of racial discrimination and censor- major business articles dealt with five ship basis, on a racial it is clear that be- course, pictures action news. Of Negro newspapers compara- cause filled persons involved racial unrest and tively mainly rare and are limited magazine. pages of this major cities, few and because we must recognize “existing dominant social opposition evaluation In to Godwin’s patterns,” Logue, United States v. Sepia quality Ebony, 290, (5 Cir., 1965) F.2d and the Pittsburgh Courier, publisher and two * * * “reality segregated publica- librarians testified that these world,” 1, Beto, Brooks v. 366 F.2d reader, tions were oriented to the Cir., (5th 1966), United States v. Jeffer- informative, educational and were Education, son Board of advocating inciting dis- instead of riots or (5th Cir., aff’d en banc 380 F.2d 385 Ebony order better some “shows 1967), cert. den. sub nom. Caddo Par- things Negroes proud of— can be States, 1967, ish Board School v. United activities, you some of than 19 L.Ed.2d U.S. 88 S.Ct. in, particularly, would the white see “inevitably imposes the hometown rule press.” further testified These witnesses greater Negroes than burden whites among publications these were existing patterns,” under dominant social country, Negro publications best reason, “inherently and for this it is dis- comparable quality to terms criminatory applied.” States United v. Magazine, they reported except Life Logue, supra, 344 F.2d at 292. accomplishments Negroes items Negroes, special Normally interest which discretion allowed judgment to white- articles were not available state officials wide magazines. They finding oriented asserted courts will not interfere absent governmental arbitrary publications Jack- these were available at action sonville, unreasonable, public Jack- libraries. racial classifi Florida but where involved, Equal son himself testified that he wanted cations are Protection they publications con- read these Four and Due Process Clauses found could not be more tained teenth Amendment command a articles again publications stringent allowed the white standard. This has been Supreme Beach his Palm and that West made clear the United States any McLaughlin Florida, 1964, carried never hometown Court Negoes except when news about 13 L.Ed.2d 85 S.Ct. riot, and 222, was a constitutional were arrested there involved the which copies validity to obtain able of statute which that he been a Florida Washington, Atlanta, singled punishment Flor- of white out for criminal petition, per- filed his ida until he of and white cohabitation 538 ballots); Supreme City opposite v. of Mem- sexes. The Watson son of overriding 526, 1314, phis, 373 [83 there was no U.S. S.Ct. Court found that (segregation public

statutory requiring proscrip- 10 L.Ed.2d in purpose 529] parks playgrounds); en- specified Brown v. conduct when tion of the Negro, Education, 294, by person gaged Board 349 [75 in and a U.S. white justifi- 753, (segregation otherwise; 99 L.Ed. 1083] without such S.Ct. schools).” (At 192, public in- cation, 191, in 85 classification racial vidiously discriminatory 288.) at in violation S.Ct. Equal Clause: Protection This strict standard has not been involving to restricted racial clas- eases “Normally, the widest discretion sification In Lombard v. statute. legislative judgment in allowed the 267, Louisiana, 1963, State of 373 U.S. some, determining to attack whether 1122, 338, 83 S.Ct. a criminal 10 L.Ed.2d all, of the manifestations rather than arising attempts conviction out of normally at; evil aimed public receive service at lunch counters every judgment given benefit product police was ruled invalid might circumstance which conceivable enforcement of custom. Johnson v. local classifica- characterize suffice to Virginia, 1963, 61, 83 373 U.S. S.Ct. arbi- than tion as rather reasonable 1053, 195, 10 struck down the L.Ed.2d g. trary Mc- e. See and invidious. practices segregating spectators 420, Maryland, 425- 366 U.S. Gowan v. race in the state courtrooms. 393,]. 426, 1101, 6 L.Ed.2d [81 S.Ct. justify Nor has the state been able (citing cases). deal But we racial classifications on the basis upon based here with a classification discretionary product were the participants must the race which made administrative determinations light of the historical be viewed in good faith intent without circumvent purpose of the fact the central Equal Protection Clause. United See elimi- Fourteenth Amendment was Jefferson, supra. States v. In Chambers emanating nate racial discrimination City v. Board of Educa- Hendersonville in the States. from official sources 189, (4th tion, 1966), Cir. strong policy racial clas- This renders “professional judg- court held ‘constitutionally suspect,’ sifications ment” of administrators did 499, Bolling 497, Sharpe, 347 v. U.S. discriminatory justify or overcome 693, 884;] and sub- 74 98 L.Ed. S.Ct. racial classification on the record shown ject rigid scrutiny.’ Kor- to the ‘most stringent applying different and more 214, States, ematsu v. United 323 U.S. rehiring teach- standards 194, 193, 194, 65 L.Ed. S.Ct. 89 deseg- ers than teachers while “in most circumstances irrelevant” formerly regating integrating leg- any constitutionally acceptable segregated faculties. See schools Hirabayashi purpose, islative v. United Branch, also Johnson v. F.2d States, 81, 100, 320 U.S. S.Ct. [65 (4th Cir., 1966), held where the court 1774], 87 L.Ed. racial it is that Thus to renew refusal the school board’s invalid have been held classifications highly qualified the contract of a g., See, variety in a e. of contexts. political her in- teacher [Virginia Tancil Board v. Woolls civil movement volvement Hamm], [85 Elections v. infractions rather than because (designation race S.Ct. 157] regulations. voting records); property Ander- pertinent cases Martin, more are the Even son v. 375 U.S. 399 S.Ct. [84 reg- (designation down rules and which have struck L.Ed.2d 430] records); appear voting property face ulations race non-discriminatory Martin, but which [84 Anderson U.S. (desig- effect, purposeful practice if not S.Ct. 11 L.Ed.2d 430] design, heavy papers impose Ne- burden on nation of race on nomination

539 whites, operate groes groes socially and not on to whites mix or to racially discriminatory public private In manner. a attend the same ed- (5th Cir., Fair, Meredith v. F.2d 696 298 ucational institutions State University Georgia 1962), that the this court held that reason of this Mississippi’s requirement presently existing each pattern that social Negro opportunities average for furnish candidate alumni for admission a personally recommendation was to acquainted certificates become with equal protection applica- average in its person, particu- denial of white Negro candidates, larly a tion for it was alumni of a white ed- Negro heavy qualified institution, necessarily burden on students ucational are imposed it no because of their race while limited.” qualified burden white students. pertinent Other are States cases United We stated: Logue, holding require- supra, v. that Negro “The no fact that there applicant, prerequisite ment that an as a University Mississippi, alumni of the registration voting, produce an for the manifest be- unlikelihood there already registered for voter to “vouch” ing alumni, if more than a handful inherently discriminatory him was as Negro any, a who would recommend applied county a in which 70% University, for traditional population Negro was but in which there society making unlikely, if it barriers Negro registered. were no This voters Negro approach impossible, not a for existing court noted that dominant request alumni with for such a a segregated pattern imposed a social recommendation, possibility of re- whites, Negroes heavier burden on than prisals if recommend a alumni should especially Negro there no since only admission, for are barriers voters on thus the rolls and who could qualified Negro applicants. It supporting thus serve as a witness significant University that Negro applicant had obtain his Mississippi adopted requirement “voucher” from the ranks of the months v. Board few after Brown Parker, population. 223 In Franklin v. 702) (At Education was decided.” per F.Supp. (M.D.Ala.1963), aff’d 724 (5th modified, curiam 331 F.2d 841 Ludley Supervisors In v. Board Cir., 1964), requirement admission F.Supp. University, 150 Louisiana State appli- graduate to state schools (5th (E.D.La.), 252 F.2d 378 900 aff’d graduated cant from an accredited have 819, Cir.) 1958, 358 U.S. cert. den. against college found to discriminate was 61, 3 statute 79 S.Ct. L.Ed.2d Negroes of Alabama as the State required for admission invalidated which of its allowed accreditation good certificate of state universities a only colleges operated lapse un- partic- character moral addressed Negro colleges. accredited university by principal ular applicant high school from which Palmer, v. This court United States high graduated. schools were voting (1966), 951 ordered only to addressed furnished certificates registration where be closed offices Negro colleges court held this Negroes disproportionate number purpose of the statute and effect past unregistered as remained a result Negroes. against In was to discriminate discriminatory practices. Louisiana v. F.Supp. 847, Arnold, 849 Hunt v. States, 1965, United (N.D.Ga.1959) (not appealed), the court 1954-1955, L.Ed.2d S.Ct. require- certificate held an alumni registration requirements ordered voter Georgia adopt- University ment of the effect “frozen” in order to obviate bur- ed in 1953 was unconstitutional an discriminatory application. prior Smith Negroes, stating: den on of Morrilton School Board Education Cir., (5th judicial notice of the F.2d “The Court takes District No. customary 1965) Ne- estab- the school board’s fact held teaching dismissing policy lished would to have from come of the one rare publishes supports staffs a closed school when cities and a Ne- gro openings newspaper right the time were not at available to have the to Negro closing applied ap- not be to could receive one. The have all-Negro parently easy newspapers an which teachers of school to access white desegregation plan, in a where was closed without the burdens the hometown Though impose, prison population some the effect was to without rule. half the teach, qualifications Negro, prison to the is concern the authorities have not solely heavy unemployment provided Negro go along on newspaper burden of to rights had newspapers gen- those whose constitutional three the white erally prison additional been where the violated and available in the canteen. Negro might impede publications mean- apparently to the result ingful be are un- of the constitutional able realization to meet sex and stand- the violence though rights pupils, officials, promulgated by prison even the ards the non-discriminatory policy prohibitions its face applied on these are against on rational con- otherwise with publications and based such and care white force only against Negro pub- In Hawkins v. North Car- siderations. (4th Society, 355 F.2d olina Dental Cir., 1966), lications. requirement the of endorse- Indeed, prison the have failed officals by of an all-white two ment members justifying heavy to their meet burden of society quasi-governmental invali- regulations the effect of on the the Negro appli- qualified dated where the rights Negro prisoners, particularly application even con- was not cant’s rights racially-dis- their criminating free be obtain because he could not sidered unnecessary burdens and mem- of the white endorsement two arbitrary their First curtailments of circumstances, when bers: “Under the rights. If Amendments racially Society’s membership was rights privileges of access have the of no exclusive and Negro recommendation magazines, then such rigid acceptable, enforcement privileges arbi- cannot be requirements of endorsement given trarily denied or curtailed Society itself a dis- members Negro prison- quantity quality less * * * of race. because crimination ers race because their or because Though in other con- use rule Negro prison fear of the officials’ may proper, be both reasonable texts “point of view.” Negroes, applied when no exclude maintained at authorities qual- professional Negro, his whatever hearing publications con- ifications, expect en- can receive tained would have to be which materials members, it is ra- of the white dorsement out, did screened 723-724). (At cially discriminatory.” personnel not large do this on a have Cypress New- the same reasons For yet scale, was conceded that it port General Nonsectarian News presently approved publications do white Cir., Ass’n, (4th Hospital appears no have to be and there screened appoint- hospital 1967), the method why Negro publications could not reason by approval a three-fourths ments subjected approved be on list and be general majority of the staff all-white screening pub- n that white same voting by was invalidated secret ballot receive in order to lications eliminate Negro manifestly burdened reason- authorities articles which applicants. ably objectionable. Reasonable al- find newspaper not burden rule do exist which do ternatives hometown That magazine Negro prisoners list manifestly inmates as to burdens newspaper rule, and would clearly record. which on this demonstrated only impose greater Negro newspapers no burden a few There are already Negro inmate have country staff than and a in the entire handling pub- protection equal assumed toward and First Amend- freedoms, ment Supreme inmates could and lications. Court has recognized permitted principle receive at least should declared the choice, state, one the means utilized to, ends, legitimate. or instead of well either in addition must be legitimate legislative Even hometown white the most add to the justify could and should ends authorities cannot enforcement Negro mag- approved one more list fundamental of individual citizens quality. may accomplished azines selected for if these ends be use of less restrictive alternative means clas racial In both the areas which result in less invasion of these First and discrimination sification rights. expressed by fundamental As pointed freedoms, have we Amendment Tucker, Justice v. Stewart Shelton stringent are to be standards out that applied supra, 488, 364 at U.S. 81 at 252. S.Ct. governmental restrictions “In a series of decisions [subse- rigid scrutiny areas, must these brought quently citing discussing Lovell v. justifications for on bear Griffin, 444, 666, 303 58 U.S. S.Ct. rights. The State on such encroachments 949; 82 Struthers, L.Ed. Martin v. strongly show some substantial must 141, 862, 319 U.S. 63 L.Ed. S.Ct. 87 requires the controlling interest which 1313; York, Saia v. New 334 U.S. im of these subordination limitation 558, 1574; 1148, 68 S.Ct. 92 L.Ed. rights, and which portant constitutional York, 290, Kunz v. New 340 U.S. 71 City infringement, justifies Bates v. 312, 280; Talley S.Ct. 95 L.Ed. v. 524, 516, 1960, 80 Little, 361 U.S. Schneider, California, supra; supra; 480; v. 412, N.A.A.C.P. 4 L.Ed.2d S.Ct. Cantwell, Louisiana, supra. also See 1958, Alabama, 357 People of State N.A.A.C.P., ex rel. Gremillion 366 U. v. 1163, 449, 463-465, 2 L.Ed. 78 S.Ct. U.S. 293, 1333, 301; S. 81 S.Ct. 6 L.Ed.2d 1488; People of State Thornhill 2d v. 415, Burton, N.A.A.C.P. v. 371 U.S. 95-96, 88, 1940, 66 S. Alabama, 310 U.S. 328, 405; Ap- 438, 83 S.Ct. 9 L.Ed.2d 1093; v. 736, Herndon L.Ed. Ct. 84 State, 500, Secty. theker v. 378 U.S. 732, 258, Lowry, 242, 57 S.Ct. 301 U.S. 1659, 84 S.Ct. 12 L.Ed.2d this 992] 1066; v. Carolene United 81 L.Ed. States though that, court has held even 152, Co., 144, 58 304 S.Ct. Products U.S. governmental legitimate purpose be 4; 1234, v. 778, L.Ed. Note Schneider 82 substantial, purpose cannot be Irving- of) Jersey (Town of New State pursued by broadly means that stifle 146, ton, 147, 161, 84 60 S.Ct. 308 U.S. personal fundamental liberties when 155; Virginia Board L.Ed. West State narrowly can end be more achieved. 639, 624, Barnette, 319 U.S. Education v. abridgment legislative The breadth 162; 1178, Thomas v. 87 63 S.Ct. L.Ed. light must be viewed in less 315, Collins, 516, 530, 65 S.Ct. 323 U.S. achieving drastic means for the same 430; 89 L.Ed. and in the absence purpose.” basic justification compelling the state infringe recently This basic impermissible same formula was restrictions are applied by leg- Supreme pre Court to ments these fundamental against criminal Talley islative sanctions draft- rights. of Califor ferred nia, 1960, v. State card destruction in United 536, States v. 60, S.Ct. 367, 1673, O’Brien, 391 U.S. 559; 88 S.Ct. L.Ed.2d Cantwell v. State 1968) (May 28, 20 L.Ed.2d : Connecticut, 1940, 310 60 S.Ct. U.S. Tucker, 1213; 84 L.Ed. Shelton v. quality “To characterize the 247; Hague 364 U.S. 81 S.Ct. governmental ap- interest which must C.I.O., 1939, 496, 59 S.Ct. U.S. pear, variety employed this Court has 83 L.Ed. 1423. descriptive of substantial; compelling; terms: justifica- Moreover, examining subordinating; para- infringement mount; tion in the areas cogent; for state strong. [Footnotes imprecision in- ness indicate factual basis for Whatever omitted.] terms, is think it the ultimate we conclusion reached heres to these regulation governmental Silberblatt, court.” See Inc. v. United clear that a (5 sufficiently justified 1965) it is within if States Cir. 353 F.2d 545. gov- power of the constitutional findings To make certain listed below important ernment; an it if furthers necessary nowill doubt be for the trial interest; governmental or substantial judge hear additional In- evidence. governmental unrelat- interest findings if cluded in such are the follow- expres- suppression ed to ing: free sion; restriction the incidental if (a) adopted by rules alleged First Amendment freedoms Board of Commissioners Institu- State greater essential to the is no than is pursuant tions to in Florida statutes are (At interest.” furtherance 4472) concerning a Record. There is rule the added.) (Emphasis mailing privileges leaves the cen- which petitioner’s On the facts case we soring designated of the same em- to “a governmental power gov- find both and ployee super- the The institution.” maintaining prison in ernmental interest intendent anof institution is one of those discipline through appropriate rules and having right and, pass the to on the mail regulations, govern- but we find that the case, Godwin, in the instant defendant application mental interest and the Superintendent, Assistant named as is regulations either here are unrelated defendant. suppression to the of First Amendment However, reading as to Rule material discrimination, freedoms or to racial following: 190A-3.046 includes designed practical either in and effect by granted authority “The Director is result, and neither do we find that listing specific up the Board to set a regulations inherent in restrictions these reading material, books and litera- application and in Amend- on First may ture which admissible in the be protection rights equal to no ment and be correctional institutions in the State greater than that which is essential Florida. in interest furtherance state’s pre- is “The Director authorized to discipline. and order listing by the above scribe executive AS TO FUTURE PROCEEDINGS listing order and to amend such when IN THIS CASE. necessary.” necessary (1) Court finds it This assume the Di- We Director means the case the District Court remand this having rector of Prisons control of all making findings purpose specific state, the correctional institutions in by required Rule of of fact as Federal party but is not a he made instant 52(a) requires Procedure Civil which case, Judge and the District should de- necessary party termine he is whether “* * * upon allowing tried purpose plaintiff all actions [I]n in jury an below, the facts without or with the court and in class others advisory jury, represents, the court find the permitted shall to be he separately specifically magazines, Ebony facts and state subscribe * Sepia. its thereon *. conclusions' of law purpose rule of this ‘is to aid (b) There in the Rec- is much evidence by affording appellate it court a clear indicating magazines Ebony ord that the ground understanding of the or basis by Negroes, Sepia, edited are decision of the trial court.’ subject parity to criticism and stand on a * * * Findings magazines published by of fact must be whites permitted by made sufficient detail and exact- the Director.2 According testimony by Ebony testifying 2. librarian the witness “I consider magazines very magazines proper, Jacksonville those best that’s one (c) (d) judge consider that the effect of our We trial should make find- judgment ings concerning will of far final this case be of fact the contentions reaching consequences, respondent allegedly the fed- both as to the burden sys- system placed respondent prisons examining eral state tems, censoring particularly magazines, in the Fifth Judicial examining bulky packages considerable doubt We find Circuit. to as- from the Record as to class what certain whether contain narcotics sought issue, however, to be benefitted and other matters. That may approximately pertain primarily It this action. be would total num- prison population magazines allowed, papers one-half of ber of thirty-two hundred, sixteen some has no reference to the matter of dis- hundred; may popula- it crimination. be Wing consisting of some tion in East through As this exten- hundred; may only pris- eleven litigation delayed has in ob- sive been Row, Wing on Death oners East taining now, any relief until are di- we thirty-six consisting approximately recting judge the trial an order to enter Negroes men- fourteen No whites. proce- further which shall stand until desiring tion is made of other complet- dures herein outlined have been magazines question except as to ed, judgment final fol- rendered as others, they are not witnesses. and two lows: cognizance judicial This Court takes judgment below is reversed and many in prison fact officials the cause remanded to the district court country large in of the institutions this proceedings not inconsistent with this selecting problem as to are met with the opinion entry and for the an order programs, programs, radio television restraining prison (1) from authorities literature, matters chaplains, other and unequal application arbitrary and at proportionately fair to to as be so regulations petitioner rules and to Jack- larger groups ethnic Negro prisoners racial and least and other and re- son straining cog- deny- from also authorities the institution. We take Negro ing petitioner prison- and other to the Record the fact nizance of rights privileges ers and afforded the number cases discloses most prisoners as to to “nonsub- access group, and their de- in each magazines; and versive” case, in this decision Our ultimate sires. restraining (2) authorities pass upon therefore, find- should be Negro denying petitioner in- judgment ings the trial and a of fact protection equal the full and mates in mind. judge those considerations discrimination, laws, free from racial easy the intolerable bur- It is to visualize enjoyment, the fullest within normal upon our fed- den which would based be enjoyment equal order, and adjudicate system forced eral rights, Amendment free from arbi- First prisoner, each individual trary censorship suppression; federal, to each subscribe minimum, order, state until as a further magazine newspaper directing modify every de- authorities any particular newspaper as to rule so allow hometown Discrimination sired. however, any particular institution, and other ac- as to cess to at least one non-subversive group is not so difficult. published, 3. The does not level with use this term invite a same its Ebony newspa- copy Magazine.” loose determination such a Life per magazine certainly very bulky, Sepia and it. is “subversive” in the Record upon judge unless, and not identical standards is the function of trial subject publications, findings court, to the con- “white” this this to make as concerning the na- same determination. flicts the evidence ture their contents. choice; (4) di- least recting add at prison authorities magazine

one non-subversive approved list of quality to the

reasonable

magazines. Remanded. Judge (concur-

HOOPER, District

ring) . disposition thoroughly concur in the

I in the case as shown above

made of this Court, how-

opinion. the District Until findings ever, complete makes more agree fact, I can not with all opinion made in above

inferences ad- I am intentional discrimination. Office the Administrative

vised reported prisoner dur- cases “of the year ing the first half of fiscal al- that were based on

there were 515 rights,” leged and that violations of civil growth of these cases number

“the years phenome- has been last few calls for careful

nal.” The situation pris- upon part of both

consideration judges.

on officials BIBBINS, Appellant,

Robert Glenn Hagen Guild, (argued), W. David America, UNITED STATES Cunningham, Reno, Nev., Guild & Appellee. appellant. No. 22372. (argued), U. Asst. Julien G. Sourwine Ward, Atty., Joseph Atty., L. U. S. S. Appeals Court of United States Nev., appellee. Reno, Circuit. Ninth HAMLIN, Cir HAMLEY Before Aug. 16, 1968. Judges, PLUMMER, District cuit Judge.* Judge.

HAMLIN, Circuit Bibbins, appellant here- Robert Glenn in, charged filed in an indictment * Judge Alaska, Plummer, Raymond sit- for the District of States District E. United Honorable ting designation.

Case Details

Case Name: Herman Jackson, Jr. v. James B. Godwin, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 23, 1968

Citation: 400 F.2d 529

Docket Number: 25299

Court Abbreviation: 5th Cir.