*1 SAXBE, ATTORNEY GENERAL, et al. v.
WASHINGTON POST CO. et al. Argued No. April 17, 73-1265. 1974 Decided June J., opinion delivered the Stewart, Court, of the in which Burger, J., Doug- C. and joined. White, JJ., BlachmuN, Rehhquist, las, J., filed dissenting a ante, opinion, p. 836. Powell, J., filed dissenting opinion, in which joined, JJ., BrenNAN Marshall, post, p. 850.
Solicitor General argued Bork petitioners. the cause for him With on the brief Acting were Assistant Attorney Jaffe, General Kitch, Edmund W. and Leonard Schaitman. Joseph ano, A. Jr., argued the respond cause for Calif ents. With him on the brief were Charles Wilson, Jr., H.
and Richard M. Cooper. *
*Wüliam. H. Allen filed brief Reporters for Committee for Freedom Legal of the Press Defense and Research Fund as amicus urging curiae affirmance. opinion delivered the Justice Stewart
Mr. Court. *2 respondents, major metropolitan newspaper
The litigation challenge one of its initiated this reporters, constitutionality (6) the of 4b of Policy State- ¶ ment 1220.1A of the Federal Bureau of At Prisons.1 time the that the case was in the District Court and the Appeals, regulation personal Court of prohibited any individually designated interviews between newsmen and prison federal inmates. The in- Solicitor General has regulation formed the Court the recently was permit press amended “to interviews at federal be institutions that can characterized as minimum secu- 2 rity.” prohibition The general press of interviews with in inmates remains in effect, however, three-quarters of e., i. prisons, the federal in all security medium and maxi- security mum including two institutions, the institutions involved this case.
In March the 1972, respondents requested permission from the petitioners, responsible the officials for adminis- tering federal prisons, conduct several interviews with specific prisons inmates at Lewisburg, Pennsylvania, and Danbury, Connecticut. petitioners per- denied mission for such interviews on the authority Policy Statement 1220.1A. The respondents thereupon com- menced this suit to challenge these denials and the regula- tion on which predicated. were Their essential con- tention prohibition was that all representatives “Press permitted will not be to interview individ ual inmates. This rule apply shall requests even where the inmate an However, seeks interview. may permitted conversation be with identity inmates whose is not public, to be made if it is limited to the discussion of facilities, institutional programs and activities.” Apr. 16, Letter Clerk, Supreme Court of the United States, presently on file with the Clerk. protection
with
abridges
that the First
activity
Amendment accords
free
newsgathering
press. The District Court
with this contention and
agreed
Policy
held
totally
pro-
insofar as
Statement,
it
hibited all
interviews at the
involved,
institutions
violated the First Amendment.
court
Although the
ac-
knowledged that
justify
could
institutional considerations
prohibition
press-inmate
of some
the Dis-
interviews,
trict Court ordered
petitioners
to cease enforcing the
prohibition
blanket
of all
interviews and, pending
such
Policy
modification of the
Statement,
to consider inter-
view requests on an individual basis and “to withhold
permission to interview
. only
. .
where demonstrable
administrative or disciplinary
dominate.”
considerations
*3
The petitioners appealed the judgment District Court's to the Court Appeals of for the District of Columbia Cir cuit. We stayed the District Court’s order pending the completion of appeal, sub nom. Kleindienst v. Washington Co., Post 406 S. 912 (1972). U. The first time this case was before it, Court of Appeals remanded it to the District Court for additional findings of fact and particularly for reconsideration light of this Court’s intervening decision in Branzburg Hayes, v. 408 U. (1972). S. 665 155 U. App. S. 283, C. 477 D. F. 2d (1972). 1168 On remand, the District Court conducted further evidentiary supplemented hearings, its findings of fact, and reconsidered its conclusions of in light law Branzburg and other recent decisions urged that were upon it. In due course, the court reaffirmed original its decision, 357 Supp. (DC F. 779 1972), and the petitioners again appealed to the Court of Appeals.
The Court of Appeals affirmed the judgment of District Court. It held with inmates could not totally be prohibited as Policy 846 do, may only
Statement “be denied purported but directly judgment where it is the administrator concerned, on either the demonstrated behavior based of the inmate, special existing or conditions the insti- at requested, both, tution at the time the interview is presents interview serious risk of administrative or disciplinary problems.” App. 161 U. D. 87-88, S. 75,C. 494 F. 2d (1974). Any prohibi- 1006-1007 blanket 994, tion of such face-to-face interviews abridge was held to the First protection Amendment’s freedom. Be- cause of the important question constitutional involved, and because apparent of an conflict in approach to the question between District of Columbia Circuit the Ninth Circuit,3 granted we certiorari. U. S. (1974). policies of the Federal Bureau of regarding Prisons
visitations to do not differ significantly from the policies California considered in Pell v. Pro cunier, ante, p. 817. As the Court of Appeals noted, “inmates’ families, their attorneys, and religious counsel are accorded liberal privileges. visitation Even friends of inmates are allowed visit, although their privileges appear to be somewhat more limited.” 161 U. App. S. C.,D. at F. 2d, 997. Other than members of these groups limited personal professional with ties to the inmates, members general public per are not *4 mitted under the policy Bureau’s to enter prisons and interview consenting policy inmates. This applied is with an even hand to all prospective visitors, including news men, who, like other members the public, may enter the prisons to visit friends or family members. But, again like members of general public, they may not enter 3 See Newspaper Seattle-Tacoma Parker, Guild v. 1062, 480 E. 2d (1973). 1066-1067 Hillery See also v. Procunier, Supp. 196, F. (ND 199-200 1973). Cal. prison on visiting and insist an inmate with whom
they relationship. have no such There is no indication on this record that Statement 1220.1A in Policy has been terpreted applied prohibit to who is person, otherwise eligible to and visit interview an inmate, doing from so merely because he is a member press.'4
Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to the prisons federal in order to observe report and conditions find there. Indeed, journalists are given prisons access to the and to inmates significant respects exceeds that afforded to members of the general public. For ex- ample, Policy Statement permits 1220.1A press represent- atives to tour prisons and to photograph any prison facilities.5 During such tours a newsman permitted to conduct brief interviews with any inmates he might en- counter.6 In addition, newsmen and inmates are per- mitted virtually unlimited written correspondence with each other.7 Outgoing correspondence from to press representatives is neither censored nor inspected. Incoming mail press from representatives is inspected only for contraband or statements inciting illegal action. Moreover, prison officials are available to the and are required by Policy Statement 1220.1A “give all possible assistance” representatives “in providing 4The Solicitor represents General’s brief that “[m] embers of the press, like public generally, may visit the to see friends there.” Presumably, the same is true with respect family mem bers. respondents disputed have not representation. 5Policy Statement (5) 1220.1A 4b (7). ¶¶ id., (6) See 4b ¶ set supra. out in n. The newsman is requested not to identity reveal the inmate, of and the conversa tion is to be limited to facilities, institutional programs, and activities. 7Id., (1) (2). 1H[4b *5 848 inmate any concerning report” specific and a
background complaints.8 brief that in their conceded have also respondents
The the interpreted been 1220.1A “has Policy Statement se- randomly a interview newsman to permit Bureau reporter result, the aAs inmates.” of group lected a ran- to interview permitted was case in this respondent Lewisburg prison. the inmates group of domly selected in the turnover constant of the light Finally, always large group is there clear that it is population, to both are available who prisoners recently released of information of a source as public general the and press prisons.9 the federal conditions about is not 1220.1A Policy Statement it is Thus, clear Prisons to Bureau of Federal attempt by any part of in fed- prevailing the conditions public from conceal inter- prearranged on limitation This prisons. eral was motivated designated individually with views considera- administrative disciplinary same by the Department of the California 115.071 § underlie tions that in Pell v. we considered Manual, which of Corrections ante, ex- Hillery, 817. The p. v. Procunier Procunier and California that of the accords with Bureau perience interest suggests of Corrections and Department relatively small “concentrated on a is often result, as a virtual- who, of inmates [become] number gai[n] a dis- prison society 'public figures’ within notoriety among and influence proportionate degree Pell, ante, at As a result fellow their inmates.” 831-832. conspicuously publicized are those inmates who because 8 Id., (12). 14b “approximately Solicitor brief us one- The General’s informs population any day half of the one will be released within following average population 23,000, whom months. approximately 12,000 year.” are released each *6 become the tend to press with the contacts repeated their can en- problems that disciplinary source of substantial prison. at a population of gulf large portion the to sought Appeals of Court and the Court District whereby by decreeing policy a selective problem meet this lead to dis- likely to prison deny officials could peti- In problems. expert judgment the ciplinary spawn seri- however, policy such a selective would tioners, by engend- of discipline problems ous and morale its own hostility ering among and resentment inmates who were privileges granted refused interview to their fellows. The Director of the Bureau testified that “one of the very basic tenets of sound correctional “to administration” is treat all inmates incarcerated in institutions, as far [the] possible, expert as equally.” professional judg- This and ment is, course, great of entitled to deference.
In this case, however, it is unnecessary engage any to delicate balancing penal of such against considerations the legitimate demands of the First Amendment. For it is apparent that the sole limitation imposed newsgather- ing by Policy 1220.1A Statement is no par- more than a application ticularized general the rule that nobody may enter designate the an inmate whom he would like visit, prospective unless the visitor is a clergyman, relative, friend of that lawyer, inmate. This limitation on justified visitations is by what the Appeals Court of acknowledged as “the pris- truism that ons are institutions where public is generally access limited.” 161 App. U. S. D. 494 F. C., 80, at 999. 2d, Florida, See Adderley v. S. 39, (1966). U. In regard, Bureau of Prisons visitation policy place does not in any less advantageous position than public generally. the total Indeed, access to prisons federal inmates that the Bureau of Prisons accords to far surpasses that available to other public. members
We find this case constitutionally indistinguishable from Pell Procunier, ante, v. p. and thus fully controlled the holding in that case. have no consti- “[N]ewsmen right tutional prisons access or their beyond that afforded the . general public.” Id., at 834. The proposition “that the Constitution imposes upon government the affirmative duty make available to journalists sources of information not available to mem- bers of the public generally . . . finds no support words Constitution or in any decision of this *7 Court.” Id., at 834-835. Thus, Policy since Statement 1220.1A “does not deny the press access to sources of in- formation available to members the general public,” id., at 835,we hold it does not abridge the freedom that the First guarantees. Amendment Accordingly, the judg- ment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered. [For dissenting opinion of Me. Justice Douglas, see ante, p. 836.]
Mr. Justice Powell, with whom Mr. Justice Bren- nan and Mr. Justice Marshall join, dissenting.
The Court today upholds the authority of the Bureau of Prisons to promulgate and enforce an absolute ban against personal interviews inmates by repre- sentatives of the news media.1 In my view the inter- view ban impermissibly burdens First Amendment free- doms. My analysis proceeds as follows. Part I ad- dresses the nature and effect of the Bureau’s policy. 1Throughout opinion I use the terms “news media” “press” to refer generally to print both journalism. broadcast Of course, the use of equipment television prisons in presents special problems that are not before the Court in this case. re- underpinnings constitutional II concerns
Part III considers the Part policy. on that attack spondents’ in ban interview an absolute for justifications Bureau’s Amendment of First appropriate standard light the factors surveys some of Part IV review, and constitutionally formulating in consider Bureau may con- some V contains Part policy. acceptable interview cluding remarks.
I any part of is not against ban Bureau prisons. federal in blackout news general the official 1220.1A establishes Policy Statement Prisons and that communications, prisoner-press regarding policy commendably public facilitates many respects policy penal federal institu- about of information dissemination the news to members of addressed Inmate letters tions. incoming mail censored, and opened nor neither media are for contra- inspected only representatives from conduct. likely illegal to incite for content band and. newsmen to officially encourages the Bureau Furthermore, on correctional report prisons order visit federal *8 programs. facilities and constitutionality is the in this case specific
The issue That prisoner-press interviews. against ban the Bureau’s Policy (6) forth in 4b Statement: policy is set ¶ inter- permitted be representatives will not “Press apply This shall even individual rule view inmates. or seeks an interview. requests inmate where the may in- permitted a be with However, conversation identity public, to be made if it mates whose is facilities, of institutional to the discussion is limited and activities.” programs explicate the distinction does not Policy Statement “conversation,” a but between an “interview” and evidentiary before the subject explored proceedings was District Court. The court found a “conversation” generally occurs when a newsman taking supervised is tour of an institution and stops to ask an inmate about prison conditions and the like. It is a brief, spontaneous discussion with a randomly encountered inmate on sub- jects limited to “institutional facilities, programs, and An activities.” “interview,” by prear- contrast, ranged private meeting with a specifically designated in- mate. It is unrestricted subject as to matter lasts a sufficient time permit full discussion.2
The Bureau’s prohibition against press interviews is absolute nature. It applies regard without to the record and characteristics the particular inmate in- volved, the purpose of the or the interview, conditions then prevailing at the institution in question. At the time of the decisions of the District Court and the Court of Appeals, the interview ban applied with equal rigor to every correctional facility by administered the Bureau, community treatment centers as major well as peniten- By tiaries. letter April dated 16, 1974, the Solicitor General informed us that the Bureau subsequently modi- fied policy its to exempt minimum security facilities from prohibition absolute of press interviews. change This affects approximately one-quarter inmate popula- tion of the prisons. federal For the remainder, Bureau intends to continue its established policy.
In its order remanding the case for reconsideration in
light of Branzburg
Hayes,
v.
853
the “extent which
reporting
the accurate and effective
dependence
news has a
upon
critical
for
opportunity
private personal
155
interviews.”
U.
D.
App.
283,
S.
C.
284,
The District Court testimony received point on this from six knowledgeable persons.4 All agreed per- sonal interviews are crucial to effective in reporting A context. depends newsman on interviews in much same way that a trial attorney relies cross- 3Writing Judge Appeals, for the Court of McGowan attributed special develop unusually enlightening care an evidentiary “great respect record to the judiciary which the federal entertains for the long Bureau reason of its history and continuous of distin guished and enlightened leadership . . . .” 161 App. 75, U. S. D. C. 77, 494 F. 2d 996. This is fuEy a sentiment share, which I for long the Bureau has been a constructive leader in reform. testimony The court received experienced from reporters, three journalists, two attorney academic special and an expertise with reporters this area. respondent were Bagdikian, Ben H. a Wash ington reporter experienced Post covering prisons and interview ing inmates; Timothy Leland, prize a Pulitzer winner who is As Managing sistant Editor of the Boston Globe and head of its investi gative reporting team; and Machacek, reporter John W. for the Times-Union, Rochester prize who won a coverage Pulitzer for his the Attica journalists Prison riot. The Abel, academic were Elie Dean of the School of Graduate Journalism of University, Columbia Roy Fisher, M. Dean of the School of Journalism of the Univer sity of Missouri and Chicago former Daily editor of the News. The sixth Liman, witness attorney was Arthur L. an gen served as who eral counsel the New Special York State Commission on Attica. capacity supervised In investigation he involving an 1,600 in interviews, mate at least 75 of which he personally. conducted *10 Only in examination. face-to-face discussion can a re- put porter question a an to inmate and respond to his answer with an follow-up question. immediate Only in an interview can the pursue reporter a particular line of inquiry to a satisfactory resolution or confront an inmate discrepancies with or apparent inconsistencies in his story. personal Without a reporter interview a often loss to determine the honesty of his informant or the accuracy of the information received.5 This is particularly true in the environment, prison where the sources of information are unlikely to be well known to newsmen or to have estab- lished any independent basis for assessing credibility. Consequently, ethical newsmen are reluctant publish story without an opportunity through face-to-face dis- cussion to evaluate the veracity and reliability of its source. Those who publish do without interviews are likely print inaccurate, incomplete, and sometimes jaundiced news items. The detailed testimony on this point led District Court to find as a fact that absolute interview ban precludes accurate and effective reporting prison conditions and grievances. inmate The District Court also found that the alternative ave- nues of prisoner-press communication allowed Policy Statement, whether considered singly or aggre- gation, are insufficient compensate for prohibition of personal interviews. For the reasons stated above, correspondence is decidedly inferior to face-to-face dis- cussion as a means of obtaining reliable information about conditions and grievances. inmate In addi- tion, prevalence of functional illiteracy among the inmate population poses a serious difficulty; many prison- 5Both Dean Abel and Dean Fisher testified personal that the inter view is indispensable so to effective reporting that the development of interviewing techniques occupies a place central in the curricula of professional journalism schools. ers are simply incapable communicating effectively writing.
Random during supervised conversations tours of facilities are personal also no substitute for *11 designated with inmates. The conversations allowed Policy Statement are in restricted both duration and permissible subject matter. Furthermore, every not in- mate is equally qualified to speak on every subject. If reporter a is investigating particular a incident, the op- portunity converse with who were present not is of little consequence. Moreover, the conversations as- sociated guided with are tours often held in the presence of several inmates, likely factor to result in distortion of the information obtained.6 The District Court received recounting In experience general his as counsel to the New York Special State Attica, gave Commission on Arthur L. Liman following testimony:
“We
group
found that in the
give
interviews the inmates tended to
rhetoric,
us
rather
facts;
than
and that
...
in the interest of show-
ing solidarity,
making speeches
inmates were
to us rather than con-
fiding what I
many
knew in
cases be
the fact.
“I
problem
should add that the
conducting
basic
in
interviews at a
society
is that
it is a
in which inmates face sanctions and
just
rewards not
from the administration
inmates;
but from other
and that
you
an
when
inmate sees
private,
in
you
he
things
will tell
about the
may
only
administration that
may
be unfavorable but
many
be
cases
I
favorable.
found that
group,
when we saw them in
there
tendency
was a
say nothing
favorable about the administra-
tion and
simply
instead
speech
to make a
about how horrible condi-
tions
In
many
were.
fact,
say
inmates who would
this in
group
say something
would
different when
were seen alone.”
II Bespondents a assert right constitutional gather news. In the language of the Court of Appeals, they claim right press access to newsworthy events. However characterized, gist of the argument is that guarantee constitutional of a free may be ren- dered ineffective by excessive restraints on access to in- formation and therefore that may Government not enforce such restrictions absent some justifica- substantial tion for doing so. In other words, respondents contend that the First protects Amendment both the dissemina- tion of news and the activity antecedent of obtaining the information that becomes news. rejects Court this claim on the ground that “news-
men have no right constitutional of access to prisons or cers and inmates was limited, rather grievance and that the real was not about incidents, those but rather they about what would feel was psychic form of repression, depriving people of their manhood. Therefore, I think a myth lot of the physical about beatings was dispelled." Id., at 292. their beyond that general afforded public.” Pell Procunier, ante, v. at 834. It is said that First protections Amendment for newsgathering by reach so far only opportunities as for the available ordinary citizen to have access to the source news. Because the Bureau of Prisons does not specifically dis- criminate against the news its media, absolute prohibition prisoner-press susceptible is not to constitu- In tional attack. the Court's view, this is true despite the factual showing that the interview precludes ban effec- reporting tive on prison conditions and grievances. inmate From all appears that in the Court's one opinion, would think any governmental restriction on access to infor- mation, no matter how severe, would be constitutionally acceptable to the majority so long as it does single not out the media for special disabilities applicable to the public at large.
I of course, that neither agree, any organization news reporters nor as individuals have rights constitutional superior to those enjoyed by ordinary citizens. The guarantees of the First Amendment broadly secure the rights of every citizen; do not create special privi- leges for particular groups or individuals. For me, at it least, clear persons who journalists become ac- quire thereby special no immunity from governmental regulation. To this I extent agree with the majority. IBut cannot follow the Court concluding any governmental restriction on press access to information, *13 long so it is as nondiscriminatory, falls outside the pur- view of First Amendment concern.
The Court principally relies on
precedents.
two
In
Rusk,
Zemel v.
381. U.
1S.
(1965), the
rejected
Court
a
United States citizen's contention that he had a First
Amendment right to visit Cuba in order to inform him-
self of the conditions there. The more recent authority
Branzburg
v. Hayes,
Nor does Branzburg Hayes, v. supra, compel major- ity's resolution of this true, case. It is of course, that the Branzburg decision rejected an argument grounded in the assertion of a First Amendment right gather news and opinion language contains which, when read in isolation, may be to support read the majority’s view. E. g., 408 S.,U. at 684-685. Taken in its entirety, how- Branzburg ever, does not endorse so sweeping rejection of First Amendment challenges to restraints access to news. The Court did not hold that the government wholly free to restrict access newsworthy informa- tion. To the we contrary, recognized explicitly that the guarantee constitutional of freedom of does extend to some of the antecedent activities that make right to publish meaningful: “Nor is it suggested that news gathering does not qualify for First Amendment protection; without protection some for seeking out the news, freedom of the press could be Id., eviscerated.” 681. We later point reiterated this by noting that “news gathering is not without its First Amendment protec- . tions . . .” Id., at 707. IAnd emphasized the limited nature of the Branzburg holding my concurring opin- : ion “The Court does not hold that newsmen, subpoenaed testify before a grand jury, are without constitutional
rights with respect to gathering news in safe- guarding their sources.” Id., at 709. In addition to explicit these statements, fair reading of the majority’s analysis in Branzburg makes plain that the result hinged *15 in- societal interests competing on an assessment any determination that in that case rather than on volved implicated. First Amendment freedoms were See id., 700-701. especially Branzburg
In
presents
neither Zemel nor
a barrier
sum,
to independent
respondents’
consideration of
constitu-
tional attack on the
ban.
precedents
interview
Those
in
arose
contexts far removed from that of the instant
in
case,
my
view neither
ex-
controls here. To the
tent
Branzburg
that Zemel and
to the
before
speak
issue
reflect
us, they
no more than
sensible
disinclination to
right-to-access argument
dry
follow the
logic
as far as
extend.
in
might
As the Court observed
Zemel: “There
are few restrictions on action which could not be clothed
by ingenious argument
garb
in the
of decreased data
flow.” 381
atS.,
goes
16-17.
It
suggest
U.
too far to
government
that
justify
stringent
must
under the
standards of First Amendment
every regulation
review
might
tangential
affect
some
way the availability
of information to the news media. But my
to
mind it is
equally impermissible to conclude
governmental
that no
inhibition of press
newsworthy
access to
information war-
rants constitutional
scrutiny. At
point
some
official
restraints on access to news sources, even though not di-
rected solely at the press,'may so undermine the func-
tion of the First Amendment
it
is both appropriate
and necessary to require the government
justify
such
regulations in terms more compelling than discretionary
authority and administrative convenience.
It
is worth
repeating our admonition in Branzburg that “without
some protection for seeking out the news, freedom of the
press could be eviscerated.”
I believe that this sweeping prohibition of prisoner- press interviews substantially impairs a core value of the First Amendment. Some years ago, Professor Chafee 7 history The prisons of our large inis measure chronicle of public neglect. indifference and Justice, pro Chief who has enlightening vided leadership subject, on the spoken has out fre quently against ignorance apathy and that characterizes our Na approach tion’s problems to the prisons: of our spite “Yet in all of this development of the step-by-step details in the adversary criminal process, we continue, at the termination of that process, to rug brush problems under the of those are who found guilty subject and to criminal sentence. very In a way, immature we seem to want to remove problem public from consciousness. “It melancholy is a truth that it has tragic taken the prison out- past breaks of years three widespread focus public attention problem.” on this Burger, Options Our Limited, Are Vill. 18 L. Rev. 165, (1972). Burger, See W. For Whom Tolls, the Bell re- printed at 25 Record of Y.N. C. B. A. 14, (Supp.) (1970). 23-24 speech of freedom of guarantee out pointed an is “There interests: kinds two protects and express their men to many need of interest, individual liv- be worth if life is to them vital to on matters opinions truth, so attainment in the interest social and a ing, course wisest adopt the only may country that the Free Chafee, way.” Z. the wisest it out in carry action but ap- In usual (1954). its States in the United Speech speech on restraints governmental a bar to plication —as important protects Amendment First publication —-the self-fulfill- personal expression and of individual values imposes here, the Government But where as ment. pub- any against sanction speech nor penalty neither First Amend- values of the individualistic lication, these directly implicated. ment are not function of the here societal is at stake is the What discussion of preserving public free First Amendment aspect of constitutional affairs. No governmental protection than its guarantee rightly more treasured open free people through of our debate ability destiny. their own As the Solicitor consider resolve General First Amendment is one point, made the “[t]he of the vital bulwarks of our national commitment to intel- *17 Brief It ligent self-government.” for Petitioners 47-48. popular embodies our Nation’s commitment self-deter- abiding mination and our faith that the course for surest developing policy exchange sound national lies in a free of public views on issues.8 And public debate must 8 Indeed, Meiklejohn aspect Professor identified this of the First paramount Amendment as its value: as, any point; “Just so far the citizens are an who to decide is- acquaintance sue are denied opinion with information or or doubt or issue, just disbelief or criticism which is relevant to that so far the ill-considered, planning result must be general ill-balanced for the good. thinking process It is mutilation the commu- of nity against which the First Amendment to the Constitution is di- only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amend ment concerns encompass the receipt of information and as ideas well as the right of free expression. Kleindienst Mandel,
v.
“The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus serves and was designed to serve as a powerful antidote any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the rected. The principle of the freedom speech springs from the necessities program of self-government.” A. Meiklejohn, Free *18 Speech (1948) 26 (emphasis in original). 864 were whom people to all responsible
people Alabama, 384 U. S. v.Mills to serve.” selected (1966). 219 media the news of role constitutionally established
This un- reasons, good For here. directly implicated is people The permitted. is access public restrained con- information for press on the depend therefore must pro- absolute Bureau’s The institutions. cerning. public ability negates interviews prisoner-press of hibition thereby sub- function and discharge that of the of free flow to a people of the right impairs the stantially their Govern- of the conduct ideas on information the public of right is the right underlying The ment. representative necessary generally. instrumental- and the in context interest the public’s I conclude right. therefore the public’s effects ity which must interviews personal against ban the Bureau’s that review. Amendment of First put to the test be Ill against prisoner-press I that the ban believe Because First Amendment impinges significantly has Government I consider freedoms, must whether In policy. justification for heavy its burden met District, 393 U. S. Des School Tinker v. Moines guaran Amendment noted First (1969), the Court characteristics light special of the “applied tees must be Id,., Term Earlier this environment.” at 506. of the . . . those applicability we had occasion consider special characteristics guarantees light in Pro opportunity That arose prison environment. Martinez, where con (1974), we cunier v. U. S. regula constitutionality of California sidered correspondence. of inmate authorizing censorship tions analyze “prisoners’ case in terms of We declined
865
rights,” for we
that censorship
concluded
of prisoner mail,
whether incoming impinges
outgoing,
on the interest in
communication of both the inmate
nonprisoner
and.the
correspondent:
“Whatever
the status of
prisoner’s
claim to uncensored correspondence with an outsider, it is
plain that
the latter’s interest
grounded
in the First
guarantee
Amendment’s
of speech.”
Id.,
freedom
at
408. We therefore
for guidance
looked
“not to
in-
cases
volving questions of
'prisoners’
rights,’ but
to de-
cisions of this Court dealing with the general prob-
lem of incidental
restrictions
First Amendment
liber-
ties
imposed
legitimate
furtherance of
governmental
Id.,
activities.”
at 409. Adopting the approach followed
Tinker,
supra; Healy
James,
v.
“First, the regulation or practice in question must further an important or governmental substantial interest unrelated to the suppression of expres- sion. . . . Second, the limitation of First Amend- ment freedoms be greater must no than is necessary or essential to the protection of particular gov- ernmental interest involved.” 416 U. at S., 413. We announced Procunier Martinez, v. supra, after final decision of this case by the District Court and affirmance by the Court of Appeals. Happily, those courts antici- pated our holding in Procunier and decided this case un- der a standard of First Amendment review that inis sub- stance identical to our formulation there. Thus, Court of Appeals sought to assure the impairment of the public’s right to a free flow of information about prisons is greater “no than is necessary for protection of the legitimate societal interests in the effective admin- App. C., D. systems.” 161 U. S. [penal] istration in detail court reviewed 2d, at 999.9 The F. Bureau and reached by interests asserted various following conclusion: the concerns question we do not
“[W]hile legitimate are interests voiced the Bureau *20 agree we with the District protection, merit must jus- in individually total, or they not, Court that do the Bureau has tify sweeping absolute ban that in impose. regulating chosen to an area which When Amendment administra- involved, First interests are tive officials must be not only careful to assure that they responding legitimate are to interests which are powers within their to protect; must also take care to regulations cast in a broad manner that unnecessarily sacrifices First rights. Amendment In this case the scope of the interview ban is exces- sive; the Bureau’s interests can and be pro- must on Id., tected a more selective basis.” 86, 494 F. 2d, at 1005.
I agree with this conclusion the Court of Appeals. The principal justification Bureau’s for its interview ban has become known during litigation the course of this as the “big wheel” phenomenon. phrase The refers generally to inmate leaders. The Bureau argues inter- views with “big wheels” increase their in- status and fluence and thus enhance their ability persuade other prisoners to in engage disruptive behavior. As a result security is threatened, discipline impaired, and meaning- ful rehabilitation rendered more problematical than ever.
There seems to be little question “big wheels” do 9The District Court framed question standard in form: “In short, are placed the limitations on First Amendment freedoms no greater necessary than is protect governmental interests as Supp. serted ?” 357 F. 773.
867. capacity exist10 and that their to influence their fellow may negative impact inmates have a on the correctional penal environment of institutions. Whether inter- following excerpt from the examination of Hans Mat- W. tick, Professor of Criminal Justice Director Center for Research in Criminal University Justice at the explains Illinois, the bases for leadership: inmate
“Q particular What are talents or factors that would lead upon particular to look persons among them as leaders? “A Well, it depend would part in per- the native talents of the son, whether reasonably he was articulate, whether he has reasonable social skills. But that wouldn’t be sufficient. “He would also have significant to have position some prison,
whether that would be the clerk of a cellhouse or whether that would be the assistant to a shop foreman or whether he person be would porter who was a or a runner, looks like a position which low status outsiders, position but which great has mobility and therefore you can become message message sender and a carrier, persons who give work areas that goods them access to in what is essen- *21 tially scarcity a economy. people “So who work in the bakery kitchens or or where other scarce supplies are and therefore can distribute illegitimately them or serve purposes other kind, of that they tend leadership. to have “Q Does the fact that an inmate is well prison known outside of tend to make him a leader within a among the inmates within prison? “A depends great It deal on the circumstances; is, for instance, notoriety by itself can’t bestow leadership. instance, “For Sirhan Sirhan, for example, or Richard Speck are simply notorious and that doesn’t bestow leadership qualities on them. Or someone like A1 Capone, example, for may great have had status outside of the prison, but when he prison, was in he became the object revenge of and by persons attacks who wanted to settle old scores, because it was felt that implement he couldn’t enough power to retaliate in turn. “On hand, the other there were persons, confidencemen spectac- burglars ular or armed big robbers with scores or something of that kind, reputation where their precedes them and follows them into prison, and that then combined, and also with certain talents and social skill and articulateness, and if it also as though looks they “big creation of role in the significant play views was a prestige of their in the enhancement wheels” or appro- in the 'Court. With dispute District subject expertise prison administrators, regard for the priate with the problems court found that associated “are all real considerations and phenomenon wheel” “big impressionistic, supported by somewhat are while good Supp. 357 F. experience advanced faith.” 774. “big that the found, however, The District Court also theory justify categorical wheel” does not the Bureau’s of all prohibition press interviews, Ap- and the Court of peals endorsed applies this conclusion. The rationale only disruptive with both proclivities those individuals leadership potential. The record reveals estimates the number of ranging troublemakers from five to percent. ten Logically, prisoners the number of in this category who significant have influence in the inmate com- munity substantially percent- should constitute a smaller age. To the extent the “big phenomenon wheel” includes influential cooperate who generally maintaining order, problem institutional it is not a at all. Publicity which enhances their prestige is certainly no hindrance penal to effective Moreover, administration. the Bureau has not identify shown that it is unable to disruptive “big wheels” and precautions specifi- to take cally designed prevent the adverse effects of media at- tention to such In short, inmates. the remedy of no interview of any inmate is broader than is necessary avoid the concededly problems real “big wheel” *22 phenomenon.11
have future in community, illegitimate the free either in the world legitimate world, play part that can phenomenon in the that we 2 leadership.” call App. 580-581. 11The other by considerations justify advanced the Bureau do not an absolute only interview ban but indicate the difficulties of case-
869 supported by is detailed This conclusion evidence systems in experience prison the successful of other al- by In connection with this lowing prisoner-press interviews. respondents attempted to ascertain counsel for litigation, policies by prison the interview followed in administrators every jurisdictions. and in numerous local The State only policy District Court received into evidence those adopted statements that had been in written form. Of the jurisdictions 24 American in sample, only broadly five prohibit personal interviews of media representatives.12 jurisdictions Seven vest correctional authority deny officials the to allow or such interviews on a 11 case-by-case basis,13 generally permit prisoner- press Thus, interviews.14 correctional in a authorities majority substantial systems represented adopt have found no need to exceptionless prohibition an against all consenting interviews of inmates, and a significant jurisdictions number of more or freely less permit them. The District Court detailed received evi- dence concerning prison systems these and the success of open-interview policy15 and found no substantial suppose reason to the Bureau of diffi- Prisons faces culties more severe than those juris- encountered in the generally dictions that allow interviews. This by-case requests. arguments evaluation of interview are These addressed in Part IV. jurisdictions These five California, Connecticut, Kentucky, are Virginia, and Wisconsin. approach Georgia, This in Alaska, Montana, followed New Jersey, Oregon, Pennsylvania, and South Carolina. jurisdictions generally permit personal interviews are Illinois, Maine, Maryland, Massachusetts, Nebraska, Carolina, North Ohio, Vermont, Iowa, City, New York and the District of Columbia. Additionally, jurisdiction, one New Mexico, unique policy follows a categorization. that defies 15The penal Court received such evidence from administrators Illinois, Massachusetts, City, New York and the District of Columbia. *23 survey of prevailing practices reinforces the conclusion that the Bureau’s prohibition of all prisoner-press inter- views is not necessary to the protection legitimate of the governmental interests at stake.
IV Finding no necessity for an absolute ban, interview the District Court proceeded to require that interview re- quests be evaluated on a case-by-case basis and that be refused only when the conduct of an individual inmate or the conditions prevailing a particular institution warrant such action. The Court of Appeals affirmed the substance the order:16 . . require
“[W]e . that interviews be only denied where it is the judgment of the administrator directly concerned, based on either the demonstrated behavior of the or inmate, special conditions existing at the 16The District Court ordered that regulations Bureau draft generally permitting press exceptions to that policy precisely “be prohibit drawn to an only interview where it can be established as a matter probability on the basis of actual experience that serious or disciplinary problems administrative are, judgment directly administrators concerned, likely directly to be and immediately caused the interview because of either the demonstrated behavior of the inmate special concerned or existing conditions at the inmate’s institution particular at the time requested.” interview is Supp. 779, 357 F. 784. The Government interpreted require this order to every denial of an interview re quest supported by be objective evidence, and argued that such a re quirement would proper invade the exercise of by prison discretion administrators and undercut their authority respond perceived threats to institutional security and order. Apparently responding to concerns, these the Court of Appeals deleted the references to “likeli hood” and “probability” and recast the portion relevant of the order language quoted in the text. The thrust of the order remains, however, administrators must decide on an ad hoc basis grant whether to each particular request for an interview. requested, interview is
institution at time the *24 a risk of both, presents the interview serious disciplinary 161 U. S. problems.” administrative or App. at C., D. 494 F. 1006-1007. 87-88, 2d, objects the individual requirement Bureau to evaluation of interview requests. argues ap- It that this proach discipline would undermine inmate morale and and occasion severe administrative line difficulties. The be- tween good-faith a legitimate denial of an interview for reasons and a un- self-interested determination avoid favorable prove could un- publicity perilously thin. Not naturally, prison might administrators tend to allow inter- cooperative views with inmates and restrict access to known policy critics institutional management. Denials that were in fact based on an administrator’s perception honest of the risk to order and security might be interpreted by some inmates as evidence of bias and Additionally, discrimination. a policy requiring case- by-case evaluation of requests interview subject could the Bureau widespread litigation of an especially debili- tating nature. Unable to rely on applica- a correct tion of general policy rule or authorizing denial, prison officials would be forced to an ad hoc defense of the merits of each decision before reviewing In courts. short, argues Bureau that an approach individualized press interviews is correctionally unsound and admin- istratively burdensome.
This assessment of the difficulties associated with case- by-case evaluation of requests interview may seem overly but it is not pessimistic, without merit. In any event, this is the considered professional opinion of the respon- sible administrative authorities. They are entitled to make this judgment, and the courts are bound to respect their decision unless the Constitution commands other- wise. I agree While with the District Court and re- Amendment First Appeals Court of against ban its absolute to abandon Bureau quires compels adop- it I not believe do interviews, in- competing balancing ad hoc policy tion for an interview. request in each involved terests II, in Part my analysis from follows This conclusion issue right at of the constitutional the nature supra, of precludes accurate interview ban The absolute this case. inmate prison conditions and reporting on and effective negates ability thereby substantially grievances subjects. public on those media to inform the of the news impairs the con- significantly ban Because the interview people in a free flow of informa- interest of stitutional *25 it is Government, on the conduct of their tion and ideas put heavy the Bureau be to a burden appropriate that policy. for that But it does follow that justification heavy burden justify any the Bureau is under the same to measure of control over access to inmates. regulation Governmental has no palpable impact the underlying right public to information needed to assert ultimate control political process over the subject scrutiny is not under the First Amendment. proper Common sense and respect for the constitutional commitment of the affairs of state to Legislative Executive Branches should deter Judiciary from chas- ing right-of-access rainbows that an eye advocate’s spot can in virtually governmental all actions. Govern- regulations mental should not be policed in the name of a “right to know” unless significantly affect the so- cietal function the First I Amendment. therefore be- lieve that a interview policy that substantially ac- public’s commodates the legitimate interest in a free flow of information and ideas about federal prisons should sur- vive constitutional review. The balance should be struck between the absolute ban of the Bureau and an unin- hibited license to interview at will.
Thus, the Bureau could meet its obligation under the First Amendment protect its concern legitimate for penal effective administration by rules drawn to serve purposes both without undertaking make an individual evaluation of every request. interview Certainly the Bureau may enforce time, reasonable place, and manner for press restrictions interviews. Such regulations already govern interviews of attorneys, clergy- men, relatives, and friends. Their application to news- present men would no great problems. To avoid media creation of “big wheels,” the Bureau may limit the num- ber of interviews of any given inmate within specified time period. To minimize the adverse consequences of publicity concerning existing “big wheels,” the Bureau may refuse to any allow interviews of prisoner under temporary disciplinary sanction such as solitary confine- ment. And, course, administrators should be empowered to suspend all press interviews during periods of institutional emergency. regulations Such would en- able the Bureau safeguard legitimate its interests without incurring the risks associated with administra- tion of a wholly ad hoc policy. interview
A similar approach would allay another of the Bureau's *26 principal concerns —the difficulty of determining who con- stitutes press. The Bureau correctly points out that “the press” is a vague concept. Any individual who as- serts an intention to convey information to might others plausibly claim perform to the function of the news media and insist that he receive the same access to in- mates made available to accredited reporters. The Bu- reau is understandably reluctant to assume the respon- sibility for deciding such questions on a case-by-case basis. Yet the Bureau already grants special mail privileges to members of the news media, and for that purpose it de- fines the press as follows: “A newspaper entitled tó sec- ond mailing privileges; magazine periodical class or of general distribution; a national or international news service; a radio or television network or station.” Policy- Statement 1220.1A, regulation 4a. This or one ¶ less inclusive could serve as an adequate for basis formulat- ing a constitutionally policy. acceptable interview Al- lowing personal of repre- interviews inmates by of media, sentatives the news defined, as so would afford substantial opportunity public for the to be informed the conduct of prisons. federal The fact that some indi- viduals who desire may interviews will not fall within a broad otherwise reasonable definition of the present should not any constitutional difficulty.17 These comments are not intended to be exhaustive or to dictate correctional policy only but indicate broad contours of the approach I that think should be available to the Bureau. I would affirm portion the judgment of the District Court as affirmed by the Court of Appeals that invalidates the absolute ban against prisoner-press interviews, but remand the case with in- structions to allow the Bureau to devise a new policy accordance with its own needs and guidelines with the set forth in opinion. experience prison systems generally that have allowed
press interviews suggest does not that the would be Bureau flooded with requests. interview If, however, the requests number of were excessive, prison administrators would have to devise some scheme allocating for among representatives. media I have as throughout sumed this discussion priority request would control, but I do not mean to foreclose possibilities. other It is a fairly practice common for representatives media pools to form many allow' newsmen participate, person either in by proxy, a news event for which access is limited. The Bureau could certainly cooperate with the news media in the administration program such a without exclusivity favoritism or widespread ensure dependable dissemination of information prisons. about our
V Court’s resolution this case has the virtue simplicity. Because the Bureau’s interview ban does not speech prohibit publication impose restrict or any special it is disability, susceptible analysis constitutional attack. This delineates outer boundaries of First Amendment concerns with unambig- uous clarity. obviates any It need to enter the thicket of particular factual context order to determine the ef- fect on First Amendment values of a nondiscriminatory restraint on access to information. As attractive approach as this may I appear, join cannot I it.. believe that we must look bright-line behind generalities, how- ever may sound they seem in the and seek the abstract, meaning of First guarantees Amendment in light of the underlying realities of particular environment. Indeed, if we are preserve First Amendment values amid the complexities of a changing society, we can do no less.