*1 PELL et al. v. PROCUNIER, CORRECTIONS
DIRECTOR, et al. Argued April 16-17, No. 73-918. 1974 Decided June 1974* *Together with 73-754, No. Procunier, Corrections Director v. Hillery al., et also appeal from the same court. *2 StewaRT, J., opinion delivered the Court, of the in which Burger, J., White, C. JJ., and joined and Blackmun, and in Part RehNQuist, joined. I J., of which J., opinion Powell, filed an Powell, con- curring part in dissenting part, post, in p. J., 835. Douglas, dissenting opinion, filed a in which JJ., BreNNAN Marshall, joined, post, p. 836.
Herman Schwartz argued the appellants cause for No. 73-918. With him on the briefs were Alvin Bron- J. stein and Melvin L. Wulf.
John Murphy, T. Deputy Attorney General of Califor nia, argued the cause for appellees in No. 73-918 and for appellants in No. 73-754. With him on the briefs were Younger, Evelle J. Attorney Jack General, Winkler, R. Chief Assistant Attorney General, Edward O’Brien, P. Assistant Attorney and Jean General, M. Bordon, Deputy Stanley argued A. Bass the cause Attorney General. him on the brief were appellees in No. 73-754. With Ralston.† Jack Greenberg Stephen and Charles opinion delivered the Mr. Justice Stewart Court. cross-appeals judg-
These are here on from the cases District in the Northern Dis- three-judge ment of a Court trict Court plaintiffs of California. the District were four California inmates —Booker T. Hillery, Bobby Jr., Larry Spain, Bly, John and Michael Shane professional journalists Guile—and three Pell, —Eve Betty Segal, Ray- and Paul Jacobs. The defendants were Depart- K. Procunier, mond Director of the California *3 ment of and Corrections, several subordinate officers department. plaintiffs that The the suit to chal- brought lenge the Four- constitutionality, under the First and Amendments, teenth 415.071 §of of the California De- partment of Corrections which Manual, provides that “[p]ress and specific other media interviews with individ- ual permitted.” sought inmates will not be They both injunctive declaratory and relief 42 under S. C. 1983. § U. promulgated Section 415.071 was by defendant Procunier authority under in him by vested 5058 of the § California applied Penal Code and is uniformly throughout penal system prohibit State’s face-to-face interviews press representatives between and individual inmates whom they specifically name request and to interview. curiae amici by Joseph †Briefs No. 73-918 were filed Cali- A. jano, Jr., Wilson, Jr., Charles H. Cooper, M. Richard Daniel P. S. Paul, and Rodgers, James W. Washington Robert C. Lobdell for the al., Post Co. et and E. Clover and Robert J. Glen King for the Publishing Houston Chronicle Co. Don H. Reuben and Lawrence Chicago Gunnels filed a brief for the Tribune Co. as amicus curiae in both cases.
820 a three- 2281 and §§
In with 28 U. S. C. accordance hear case.1 judge court was convened to each undisputed. Pell, Segal, The are and Jacobs facts corrections requested permission appropriate from the Guile, re- Spain, Bly, officials to interview inmates and In certain spectively. periodi- the editors of a addition, requested permission cal inmate Hillery to visit discuss the possibility of their certain publishing writings of his and to interview him concerning prison.2 conditions at the Pursuant 415.071, §to these all requests were denied.3 plaintiffs The thereupon enjoin sued the continued en- forcement of this regulation. plaintiffs The inmate con- tended speech § 415.071 rights violates their of free litigation single judge pro This was first initiated before a nearly year ceeded for with the court’s attention focused practice Quentin Penitentiary, interview at San. State where all the plaintiffs confined, inmate sought by are where the interviews plaintiffs occur, defendants, media except were to all where Procunier, employed. Mr. are After the matter was briefed and argued, single judge preliminarily enjoined the enforcement of Only bring 415.071. then did the defendants § to the court’s atten tion application. 415.071 was a of statewide There § three-judge pass after a court was convened to on the constitutional validity regulation. periodical publication has since ceased and its editors did not join plaintiffs litigation. the media in this question There is some as to whether the interview between Hil- *4 lery magazine and the authority was editors denied under the Department policy permits, of Corrections interview §415.071. case-by-case basis, meetings between inmate authors and their publishers. The defendants contend that the interview was denied here because the officials made an individualized that determination meeting necessary the publication was not in fact to effectuate the Hillery’s Hillery, hand, works. on the other notes that the editors had prison they indicated to the officials also wished to discuss with him publish the conditions in the order article subject. Thus, appears on that it the denial inwas all likeli part hood based at least in on 415.071. § Similarly, Amendments. Fourteenth
under the First and
limitation that this
that the
plaintiffs
media
asserted
the
activity uncon-
newsgathering
on their
places
press guaranteed
stitutionally
the freedom the
infringes
Amendments.
by
and Fourteenth
the First
mo-
granted
plaintiffs’
The
the inmate
District Court
holding that
inso-
summary judgment,
415.071,
§
tion for
prohibited
having
it
inmates from
face-to-face
far as
unconstitutionally
in-
journalists,
communication with
fringed their
Fourteenth Amendment freedoms.
First and
respect
plaintiffs,
to the claims of the media
the
With
granted
court
the defendants’ motion to dismiss.
court noted that
under
415.071 as it
be-
§
stood
“[e]ven
today’s ruling
rights
fore
inmates’ constitutional
[that
given
the free-
were violated
was
§ 415.071]
at
dom enter the California institutions and interview
random,” and concluded
the even broader
“that
access
today’s
afforded prisoners by
ruling sufficiently protects
rights
press may
respect
whatever
have with
to inter-
Supp.
views with inmates.”
364 F.
196, 200.
In
73-754,
No.
Corrections Director Procunier and the
appeal
other defendants
from
judgment
of the District
Court that
415.071 infringes
plaintiffs’
§
the inmate
First
and Fourteenth Amendment
In No.
rights.
73-918,
media plaintiffs appeal
rejection
court’s
of their
claims.
probable jurisdiction
We noted
of both appeals
¡3.
and consolidated the
argument.
cases
oral
414 U.
1155.
I
In No. 73-754,
plaintiffs
inmate
claim that
415.071, by prohibiting
§
participation
their
in face-to-
face communication with newsmen and other members of
general
public,
right
violates their
of free speech un-
der the First and Fourteenth Amendments. Although
constitutional
free speech has never been
*5
thought
a right
embrace
to require
journalist
a
or
any other citizen to listen to
person's views,
a
let alone
a
right
require
publisher
a
publish
those
views
his newspaper, see
v. Rutgers,
Avins
State University of
New Jersey,
We start with the familiar proposition that
awful
“[1]
incarceration brings about
the necessary withdrawal or
limitation of many privileges and rights, a retraction
justified by the considerations underlying
penal
our
sys-
tem.” Price v. Johnston,
An important function of the corrections system is the deterrence of crime. premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people pre- sumably find undesirable, they and others will be de- terred from committing additional criminal offenses. This *6 by- function protective a serves course, also of isolation, time of period given a offenders criminal quarantining cor- the of processes rehabilitative the hoped, it while, is demon- offender’s the correct to work system rections offenders most since Thus, proclivity. criminal strated ob- paramount another society, to return eventually will of rehabilitation is the system the corrections of jective all to central Finally, custody. its to committed those consideration institutional is the goals corrections other them- facilities corrections the security within internal of objec- penal legitimate these light of is in the It selves. prison to challenges assess must court a that tives of rights constitutional on asserted based regulations prisoners. one restricts clearly here challenged regulation inmates prison between communication
manner of walls. prison the beyond general members it. to resolve not problem, state merely to this But corrections refusal of a said be could same For the to leave temporarily inmate permit authorities outside. persons with communicate in order prison Constitution that contend sensibly one could no Yet con- individualized even give the authorities requires Rusk, U. S. v. Zemel Cf. requests. to such sideration the con- to evaluate properly In order (1965). 1, 16-17 think 415.071, we stitutionality § viewed be must but in isolation considered be cannot per- communication means alternative of the light outside persons regulations under mitted particular “may there recognize We prison. debate, dis- face-to-face sustained, inherent qualities existence and “that [the] questioning,” cussion altogether extinguis[h] not] [does other alternatives in this appellees part on the interest constitutional Mandel, 408 Kleindienst form of access.” particular S. U. 765 (1972). But we regard the available “al- ternative means of [communication as] relevant factor” in a case such as this where “we called [are] upon to balance First rights Amendment against [legitimate] governmental . . . interests.” Ibid.
One such alternative available to
California
in
mates is communication by mail. Although prison regu
lations, until
recently, called for
the censorship of
s+atements, inter alia, that “unduly complain” or “mag
*7
nify grievances,”
express
“inflammatory political,
racial, religious or other views,” or that were deemed
“defamatory” or “otherwise inappropriate,” we recently
held that “the Department’s regulations authorized cen
sorship
prisoner
mail far broader
any
than
legitimate in
terest
penal
administration demands,” and accordingly
affirmed a district court judgment
invalidating the regu
lations. Procunier v. Martinez,
Moreover, the visitation policy of the California Cor- Department rections does not seal the inmate off from personal contact with those outside prison. Inmates are permitted to receive limited visits from members families, clergy, attorneys, of their their and friends categories of these prior acquaintance.4 selection professional based on Director’s judg- visitors is ment such will in the rehabilitation of visits aid compromising legitimate inmate while not the other ob- jectives system. of the corrections not case This is in which the selection on the anticipated is based content of the communication between inmate and the prospective If a visitor. member of the fell within any of categories, these there is no he suggestion that would not permitted to visit with the inmate. More importantly, inmates however, op- have unrestricted portunity to communicate with the or other member of the through families, friends, their attorneys or clergy, permitted who are to visit them at prison. provides this another alternative ave- Thus, nue of communication between per- inmates and sons prison. outside the would find availability
We of such alternatives un- impressive they if were justification submitted as governmental restriction of personal communication *8 among members of the general public. We have recog- nized, relationship prisoners however, “[t]he state and the state supervise officers who their confinement is far more intimate than that of a and private State
4 policy appear This does not to be expressly codified or otherwise any generally articulated in applicable regulation. rule or The state ment visiting privileges Quentin for Penitentiary San State indi cates that all approved by visitors must be the corrections officials and must be either family “members of the or long friends of stand ing.” It permits by also attorneys visits to their Although clients. nothing is said in this statement about visits members of the clergy, dispute there is among parties no practice that the of the Department permit of Corrections is to such visits. There is also no disagreement among parties policy that this generally visitation is applied by Department throughout system. the state corrections 826 prisons of state problems “internal that the and
citizen,” authority and state within peculiarly . . . issues involve 492 475, Rodriguez, 411 U. S. v. Preiser expertise.” (1973). no find Martinez, supra, could v. we
In Procunier the substan- justify interest governmental legitimate on written imposed been had there tial restrictions that ques- by inmates. When, however, communication into entry people tion involves it obvious inmates, communication with is fáce-to-face security re- considerations, as and that institutional such accepted administrative as well as problems, lated objectives sys- corrections legitimate policy placed some be itself, require tem limitation such long visitations. So as reasonable and effective means of open communication remain and no discrimination in of content we involved, that, drawing terms believe “prison such lines, officials must be accorded latitude.” Beto, Cruz S., v. 405 U. at 321.
In a number of
we have held “that reason
contexts,
place
able
regulations
and manner’
'time,
communi
[of
activity] may
cative
necessary
to further significant
governmental
interests,
permitted.” Grayned
are
v.
City Rockford,
In this case the restriction takes the form of limiting visitations to individuals who have either personal or professional relationship to the family, friends inmate — of prior acquaintance, legal counsel, and clergy. In the judgment of the state corrections officials, this visitation policy permit will inmates to personal have contact with persons those who will in aid their rehabilitation, while keeping visitations at a manageable level that will not compromise security. institutional Such considerations peculiarly are within province professional ex- pertise of corrections officials, in and, the absence of sub- stantial in evidence the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judg- ment such matters. Courts cannot, of course, abdi- cate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue in- volves a regulation limiting one of several means of com- munication by an inmate, the institutional objectives furthered and the judicial measure of deference owed to corrections officials in their attempt serve those are interests relevant gauging the validity of the regulation.
Accordingly, in light of the alternative channels of communication that are open inmates,5 we suggested It is by the appellees inmate that the use of the mails as an alternative means of may communication not be effective in *10 828 restriction this that in this case the record say
cannot communicate can prisoners in which manner on one long as So unconstitutional. is outside persons re- fashion, without in a neutral operates this restriction the within it falls expression, of the content the to gard “prisoners which to regulations” and rules “appropriate and Beto, supra, at Cruz v. necessarily are subject,” re- freedoms Amendment any First abridge not does by prison inmates.6 tained There is illiterate. even inarticulate or prisoners who are
the case of the before however, four inmates indication, of the that no Indeed, record the these disabilities. either of from Court suffer published writers. are affirmatively inmates that shows two action, plaintiffs never complaint was filed as a class Although the action as certify a class the case as Court to District moved the Thus, (c). (b)(3) 23 Proc. by Fed. Rules Civ. required is neither that there contention answer to the inmates’ short finding support for a in the record nor finding by District Court are not an effective of communication channels that alternative persons out- to express themselves appellees to inmate means for the the prison. side artic- may not be literate or respect inmates who to Even with officials suggestion the corrections ulate, however, that there is no or aid of fellow inmates seek the permit such inmates to would not thoughts to commit their family visit them to and friends who general public. Cf. writing to individuals in communication for Merely in- (1969). such Avery, because 393 U. S. Johnson v. channels the alternative may assistance to utilize one of mates need course, the alternative, unless, of it an ineffective does not make receiving assistance. such prohibits from the inmate State restricting press representa argue their access The inmates unconstitutionally Amend their Fourteenth tives burdens First government grievances. petition the redress of ment contend, provides them press, with the the inmates Communication grievances, only opportunity their effective to communicate with their legislative through public opinion, channel of to the and executive government. think, however, branches of the that the alterna We available tive means of communication with the that are together prisoners, Cali- with the substantial access to
II
In No. 73-918, the media plaintiffs ask us to hold that
limitation on
interviews imposed by § 415.071
*11
violates the
press
freedom the
guaranteed
by the First
and Fourteenth Amendments. They contend that,
ir-
respective of what First Amendment
may
liberties
or
may not be
by prison
retained
inmates, members of the
press have a
right
constitutional
to interview any inmate
who willing
speak
to
with
them,
the absence of an
individualized
particular
determination that the
interview
might create a clear and present danger
prison
to
security
or to some other substantial
by
interest served
the cor-
system.
rections
In this regard, the
plaintiffs
media
do
not claim any impairment of
freedom
their
to publish,
for
imposes
California
no restrictions on
may
what
published about
its prisons,
prison
the
inmates, or the
officers who administer
prisons.
the
Instead,
they rely
on their right
gather
to
news
governmental
without
inter-
ference, which the
plaintiffs
media
assert
right
includes
fornia accords the
and other
public,
infra,
members of the
see
830-831,
at
satisfies
right
may
whatever
the inmates
petition
have to
goverment through
the
press.
the
We
note
also
prison
California accords
inmates substantial
opportunities
petition
to
executive,
the
judicial
legislative, and
government
branches
directly.
Section 2600 of the California
permits
Penal Code
correspond
inmate to
confidentially
any
with
public officeholder.
promulgated
And
various
Depart-
rules
ment of
explicitly permit
Corrections
an inmate
correspond
to
with
Governor,
any other elected state or
official,
any
federal
and
appointed head of a
agency.
or
state
federal
Similarly, California
has
prisoners
acted to
right
assure
petition
judicial
to
relief.
See,
g.,
Jordan,
e.
In re
7
930,
Cal. 3d
500
2d
(1972);
P.
In re
Geldern,
Van
832,
Cal. 3d
489 P.
(1971);
2d 578
In Harrell,
re
2 Cal.
3d
(1970).
noteWe in its conditions conceal the attempt by the State of an report- and investigation press’ prisons or to frustrate demonstrates record Indeed, the conditions. ing of those both policy, under current corrections that, to ob- opportunities accorded full public are general of Correc- Department conditions.7 serve through tours conducts regularly tions In news- addition, citizens. benefit of interested for the security both the maximum to visit permitted men are institutions and security sections of the and minimum inmates whom any subject stop speak about security permit, If considerations they encounter. might step permit aside to such inter- personnel corrections will *12 Apart from access to all general to be confidential. views permitted newsmen are also to parts institutions, of the prisons the to interview inmates selected at random enter By officials. the same if a token, the corrections story particular prison newsman wishes to write a on a to in on permitted meetings he is sit and program, group In participants. to interview the inmate members short, 7 policy recognition This a that the in this Na reflects conditions prisons newsworthy great pub tion’s are a matter that is both and of importance. commented, lic The As Justice has we cannot Chief rug problems “continue to brush under ... of those who are guilty subject found to criminal It is a melan sentence. ... choly tragic prison past truth that it has taken the outbreaks of the years widespread public three problem.” to focus attention on this Burger, Options Limited, 165, (1972). Our are L. 167 Vill. Rev. Along lines, correctly the same has observed that The Chief Justice prisoners change, public we want to prisoners attitudes toward “[i]f ex-prisoners change. prisons must A ... visit most will make you Burger, zealot for reform.” W. For the Bell Whom Tolls, reprinted 14, at 25 Record of (Supp.) N. Y. C. B. A. (1970). press enjoy access California that is not
available to other members of the public.
The sole limitation on newsgathering in California prisons is the prohibition in § 415.071 of interviews with individual inmates specifically designated by representa- tives of the press. This restriction is of recent vintage, having been imposed in 1971 in response to a violent epi- sode Department that the of Corrections felt was at least partially attributable to the former respect policy to face-to-face prisoner-press interviews. Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish. Only members of préss were accorded this privilege; other members general public did not have the benefit of such an unrestricted visitation policy. Thus, promulgation of § 415.071 did not im- pose a discrimination against press access, but merely eliminated a special privilege given formerly represent- atives vis-á-vis members of generally.8
In practice, it was found that policy prior effect to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small num- ber of who, inmates as a result, “public became virtual figures” within the prison society and gained a dispropor- tionate degree of notoriety and influence among their 8It cannot be contended that because *13 permits family, California friends, attorneys, clergy and inmates, to visit it cannot limit visita by tions press. No general member of the public who not does personal have a professional or relationship permit to the inmate is ted to prison enter the and name an inmate with whom he would like engage to in face-to-face Thus, discourse. press granted is the same respect access in this inmates is as accorded general member of the public. Indeed, is as text, noted in the aggregate access has to California and their inmates is substantially greater general than that of public. 832 notoriety influence, of this Because inmates.
fellow disci- of severe the source often became inmates these press atten- extensive example, For plinary problems. non- espoused practice a inmate who to an tion other encouraged prison regulations with cooperation the institutions’ eroding thus to follow suit, inmates inmates effectively generally. with the ability to deal Court, 21, on August District in the words of the Finally, Quentin at escape attempt San three “[d]uring 1971, was inmates were killed. This members and two staff dis- climax of by mounting the officials as viewed posture ciplinary problems caused, part, its liberal August 23 regard press interviews, and on F. adopted mitigate problem.” 364 § 415.071 was 198. It this that we Supp., against background at plaintiffs’ consider the media claims under the First and Fourteenth Amendments. guarantee
The constitutional of a free “assures political maintenance of our system open and an Time, Hill, Inc. society,” v. 385 U. 389 374, (1967), S. paramount public secures “the interest in a free flow people information to the concerning officials,” Louisiana, Garrison v. 379 U. S. 77 64, (1964). See also York Sullivan, New Times Co. v. 376 U. (1964). 254 S. By the same token, “'[a]ny system prior restraints expression comes to this Court bearing heavy pre ” sumption against its constitutional New validity.’ York Times States, Co. v. United 403 U. S. 714 713, Organization a Better Austin Keefe, (1971); v. 402 Bantam Books, U. (1971); S. 415 Sullivan, Inc. v. 372 58, U. S. 70 (1963); Near v. Minnesota Olson, ex rel. U. S. 697 (1931). Correlatively, the First and Fourteenth protect Amendments also the right of the public to receive such information and published. ideas as are Kleindienst v. Mandel, 408 U. atS., 762-763; Stanley Georgia, U. S. (1969).
In Branzburg Hayes, 665 (1972), 408 U. S. the Court went further and acknowledged gathering that “news not without First id., its Amendment protections/’ at protection “without some for seeking out the news, freedom press id., could be In eviscerated,” at 681. Branzburg the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to identity disclose the of their confidential sources to a grand jury when that information was needed in the course of good-faith a criminal investigation. The Court there “perceive could no basis for holding public that the interest in law enforcement and in ensuring grand effective jury proceedings insufficient [was] override con- sequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to questions relevant put to them in the aof valid grand course jury investigation or criminal trial,” id., at 690-691.
In this case, the plaintiffs media contend § 415.071 governmental constitutes interference with their news- gathering that is activities neither consequential nor un- certain, that no substantial governmental interest can be shown to justify press the denial of access to specifically designated prison inmates. particu- More larly, plaintiffs the media assert that, despite the sub- stantial access to California and their inmates accorded representatives broader —access than is accorded members the public generally —face- to-face interviews with specifically designated inmates is such effective and superior method of newsgathering its curtailment amounts to unconstitutional state interference with a press. free We do not agree.
“It has generally been held that the First Amendment does not guarantee constitutional special access to information not available to generally. . . . Despite the fact that news gathering may *15 grand from excluded regularly the is hampered, of meetings the conferences, our own proceedings, jury the session, in executive gathering bodies other official no have organizations. Newsmen meetings private of crime or dis- scenes of right of access to the constitutional Branzburg v. public is excluded.” general when the aster no newsmen have Hayes, supra, Similarly, at 684-685. inmates to or their right constitutional of access public. beyond general that afforded the bar govern- The First and Fourteenth Amendments in The interfering way press. ment from free require does to not, however, government Constitution press special accord the access to information not shared public to generally.9 thing members It is one say journalist that a free to infor- is seek out sources of not general mation available to members of the public, protection that is entitled to some he constitutional confidentiality Branzburg such cf. sources, Hayes, supra, and government that restrain the cannot publication of news emanating from such sources. Cf. York States, New Times supra. Co. v. United quite It is another thing suggest to imposes that the Constitution upon government duty affirmative to make available journalists to sources of information not available to mem- bers of the generally. proposition That finds no support in the words of the Constitution or in any decision 9As Mr. Chief put Justice writing Warren the matter in for the Rusk, Court Zemel v. (1965), U. S. 16-17 are few “[t]here restrictions on action which by ingenious argu could not be clothed garb ment of decreased data flow. example, prohibi For entry tion of unauthorized into the White House diminishes the opportunities gather citizen’s might information he find relevant opinion way to his country being run, but that does not entry make into the White right. House a First Amendment right speak publish carry does not with it the unrestrained right gather information.” of this Court. Accordingly, since does § 415.071 not deny access to of information sources available to members of the general public, we that hold it does not abridge protections that the First and Fourteenth Amendments guarantee.
For the reasons stated, we reverse the District Court’s judgment that § 415.071 infringes the freedom speéeh of the prison and affirm inmates its judgment not does abridge the constitutional aof press. free Accordingly, the judgment is vacated, and the cases are remanded to the District Court for further *16 proceedings consistent with opinion. this
It is so ordered. Mr. Justice Powell, concurring in part and dissenting in part.
These cross-appeals concern the constitutionality, under the First and Fourteenth Amendments, of Department California of Corrections prohibits all personal interviews of prison inmates by representa- tives of the news media. This regulation substantially identical to the United States Bureau of Prisons policy statement validity whose is at issue in Saxbe v. Washing- ton Co., post, Post p. 843. For the stated my reasons in dissenting opinion in that case, post, p. I would hold that California’s absolute ban against prisoner-press in- terviews impermissibly restrains the ability of perform its constitutionally established function of in- forming the people on the conduct of government. their Accordingly, I dissent from the judgment of the Court.
The California cross-appeals differ from the Washing- ton Post in case one significant respect. Here the con- stitutionality of the interview ban is challenged by pris- oners well as as newsmen. Thus these appeals, unlike Washington Post, raise the question whether, inmates as constitutional to de- personal individuals have a I reporters. mand willing agree Because interviews I majority join with the do I they not, Part opinion of the Court.
Mr. Bren- Justice with whom Mr. Justice Douglas, nan and Mr. Justice Marshall dissenting.* join,
These involve the under the cases constitutionality, First and Fourteenth Amendments, prison regulations limiting communication state and prison- between federal press. ers and the Nos. 73-754 and 73-918 are cross- appeals judgment from the of a three-judge District Court for Northern District of California. 364 F. Supp. 196. brought Suit was that court four Cali- prisoners fornia state professional journalists three challenging the constitutionality Depart- California ment of Corrections § Manual 415.071 imposes which absolute ban media interviews with individually designated inmates. upheld court claim regula- that this prisoners’
tion is violative of their right of free speech, and, No. 73-754, Director of the Department California appeals Corrections from the injunction court’s against *17 further enforcement the regulation. jour- As to the nalists’ claim, the court noted: “The plaintiffs media herein and amicus curiae argue that § 415.071 is violative of not only the prisoners’ First Amendment but rights, also press’. disagrees.” court 364 F. Supp., at 199. In No. 73-918, journalists appeal this rejec- tion of their claim.
No. 73-1265 involves a media challenge to Federal
Bureau of Prisons Policy Statement
1220.1A,
(b)(6),
†[
which prohibits press interviews with any particular fed-
opinion applies
*[This
also to
73-1265,
No.
Saxbe et al. v. Wash-
ington Post
al.,
et
post,
Co.
p. 843.]
prisoner
eral
in security
medium
maximum
or
secu-
rity facility. The District
held
Court
the total ban vio-
lative
the First Amendment’s
free
guarantee enjoined its enforcement.
357 F. Supp. 770. The Court
of Appeals
Washington
affirmed sub nom.
Post Co. v.
Kleindienst, 161
App.
U. S.
D. C.
I In analyzing the prisoner challenge to California’s absolute ban on media interviews with individual inmates, I start with the proposition that among “foremost Bill Rights of prisoners in this whether country, under state or federal detention, is the First Amendment. Prisoners are ‘persons’ still entitled to all constitutional rights their unless liberty has been constitutionally by procedures curtailed satisfy all the requirements of due process. . . . Free speech within the meaning of the First Amendment are, my judgment, pre-eminent among privileges and immunities all citizens.” Procunier Martinez, v. 416 U. S. 428-429 J., concurring in judgment). With that prem (Douglas, I ise, cannot agree with the Court that California’s grossly
overbroad
prisoner
restrictions on
speech are constitu
tionally permissible.
I agree
in
discipline,
mate safety, and rehabilitation must be considered in
evaluating First
rights
Amendment
in the prison con
text. First Amendment principles must always
ap
plied “in light of
special
characteristics of the . . . en
vironment.”
Tinker v. Des Moines School District,
S. 503, 506;
U.
Healy
James,
All prisoners that contend, and all courts below is that found, penal these interests cannot be used as justification a for an ban on absolute media interviews be- cause prophylactic rules in “[b]road area free ex- pression suspect. are . . . Precision be must touchstone area an so closely touching our most precious freedoms.” v. Button, NAACP 415, U. S. 438. And see Cantwell v. Connecticut, 310 U. S. 311.
It is true that prisoners are left with other means of expression such by as visits relatives and communica- by tion mail. But the can State hardly defend overly broad restriction on expression by demonstrating it has not eliminated expression completely.
As Justice Mr. Black has said: ' “I accept cannot my Brother Harlan’s view [in that the abridgment
dissent] of speech here does not violate the First Amendment because other methods of communication are left open. This rea- son for abridgment strikes me being as par with holding that governmental suppression of a newspaper in a city would not violate the First Amendment because there continue to be radio and television stations. First Amendment freedoms can no more validly be taken away by degrees than by one fell swoop.” NLRB v. Fruit Packers, 377 U. S. 58, 79-80 (concurring opinion).
A State might decide that criticism of its affairs could reduced prohibiting all its employees from dis- cussing governmental operations in interviews with media, leaving criticism of the State to those with the time, energy, ability, and inclination to communicate *19 offen- here is no less prohibition the mails. through flatly prohibits it principles; sive Amendment to First govern- the media on the with interview communication citizens with the operations by only penal ment’s them. and real incentive discuss knowledge best interest I the court below that State’s agree ban discipline justify in and cannot its total order individually designated any on all media interviews with a coarse at- any inmate on matter whatsoever. Such in an tempt regulation patently at is unconstitutional “[precision regulation area where must the touch- Button, supra, NAACP 438; at v. stone.” v. Elfbrandt Russell, I 11, 384 U. S. 18. would affirm the District judgment regard. Court’s in this
II In 73-1265, Nos. 73-918 the media claim that and flatly prison regulations here, by the state and federal prohibiting press, interviews with inmates selected impinge press guaran- free upon the Amendment’s First directly tee, protected against infringement federal protected against infringement by the Fourteenth state In rejecting Amendment. the Court notes that claim, the ban on prisoners applies gen- access to as well to the that “newsmen public, eral it holds have no constitu- right beyond tional of access to or their inmates public.” Ante, general afforded the at 834. In dealing with the free it im- guarantee, is portant protects to note that interest it not possessed by In the media themselves. en- enjoining forcement the federal Judge No. 73-1265, Gesell did right not of the Washing- vindicate ton Post, but rather people, the true sovereign our govern under constitutional scheme, manner. preferred “The has a posi- informed tion in our constitutional not to enable scheme, it to make money, not to set newsmen as a apart favored class, but to bring fulfillment to public’s right The right know. to know is crucial to the governing powers of people.” Branzburg Hayes, 408 U. S. J., dis- (Douglas, *20 senting) .
Prisons, like all other public institutions, are ultimately the responsibility of the populace. Crime, like the economy, health, education, defense, and the like, a matter grave concern in our society and people have right the necessity and the to know not only the inci- dence of crime but of the effectiveness of system the designed to control it. any given “On day, approximately 1,500,000 people are under authority the of [federal, state and local prison] systems. The cost taxpayers is over one billion dollars annually. Of those individuals sen- tenced to prison, will return to society.”1 The 98% public’s interest in being informed prisons about is thus paramount.
As with prisoners’ the speech free claim, no one asserts that free right is such that the authorities are powerless impose regulations reasonable as to the time, place, and manner of interviews to prison effectuate disci- pline and order. The only issue here is whether complete ban on interviews with inmates selected by the press goes beyond what is necessary for the protection of these interests infringes upon our cherished right of a press. free As the Appeals Court of noted in No. 73- 1265: we “[WJhile do question not the concerns 1Subcommittee Courts, Liberties, Civil and the Administration of Justice of the House on the Judiciary, Committee Cong., 93d 2d Sess., Report on Inspection of Federal Facilities at Leavenworth Penitentiary and the Medical Center for Federal (Comm. Prisoners 1974). Print by
voiced the Bureau are legitimate [of interests Prisons] that merit agree we must protection, with the District Court that they do not, individually or in total, justify sweeping absolute that the ban Bureau has chosen to impose.” App. 161 U. D. atC., S. F. at 2d, 1005.
It is thus not to note enough the press in —the stitution which Constitution specifically “[t]he se lected ... play important role in the discussion public affairs” 2—-is denied no more access to the than is denied generally. The prohibition of by visits the public has no practical effect upon their beyond to know that achieved by the exclusion of press. citizen average is most unlikely to inform himself about operation system re questing an particular interview inmate with whom he no prior has relationship. He is likely instead, *21 in a society which values a free to press, rely upon the media for information.
It is indeed ironic for the Court to justify the exclusion of the press by noting that government the gone has beyond the press and expanded the exclusion to include public. Could government deny press access to all institutions and prohibit with interviews governmental all employees? Could it find constitu- by tional footing expanding the ban deny such access everyone? 1 agree with the courts below in No. 73-1265 that absolute ban interviews specifically desig- nated federal inmates is far broader than is necessary to protect any legitimate governmental interests and is an unconstitutional infringement public’s on the right protected know by the free guarantee of the First I Amendment. would affirm the judgment in this re- 2Mills v. Alabama, 384 U. S. 219. state against guaranteed basic this
gard. Since First Amendment application infringement ab- California’s Fourteenth,3 through to the States I would reverse fare no better. ban can solute in No. 73-918. claim rejection of this Court’s District Stromberg California, Hughes Mr. Chief Justice “While *22 applicable 359, to the U. S. the First Amendment was stated that Fourteenth, has it States Due Process Clause of the reason of the customary entire foundation of the become to rest on the broader meaning speech and within the Fourteenth Amendment. Free is, my judgment, pre-eminent Amendment one of the First Martinez, privileges Procunier v. and immunities of all citizens.” J., concurring judgment). 428-429 S. U. (Douglas,