Holding: Court upholds a prison rule that states that “Press and other media interviews with specific individual inmates will not be permitted.”
No. 73-918.
417 U.S. 817
94 S.Ct. 2800
41 L.Ed.2d 495
Argued April 16-17, 1974.
Decided June 24, 1974. *
Appeal from the United States District Court
for the
Northern District of California.
[Footnote * ]
Together with No. 73-754, Procunier, Corrections Director v. Hillery et al.,
also on appeal from the same court.
Syllabus: Four California prison inmates and three professional journalists brought this suit in the District Court challenging the constitutionality of a regulation, 415.071, of the California Department of Corrections Manual, which provides that “[p]ress and other media interviews with specific individual inmates will not be permitted.” That provision was promulgated following a violent prison episode that the correction authorities attributed at least in part to the former policy of free face-to-face prisoner-press interviews, which had resulted in a relatively small number of inmates gaining disproportionate notoriety and influence among their fellow inmates. The District Court granted the inmate appellees’ motion for summary judgment, holding that 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists unconstitutionally infringed the inmates’ First and Fourteenth Amendment freedoms. The court granted a motion to dismiss with respect to the claims of the media appellants, holding that their rights were not infringed, in view of their otherwise available rights to enter state institutions and interview inmates at random and the even broader access afforded prisoners by the court’s ruling with respect to the inmate appellees. The prison officials (in No. 73-754) and the journalists (in No. 73-918) have appealed.
Held:
1.In light of the alternative channels of communication that are open to the inmate appellees, 415.071 does not constitute a violation of their rights of free speech. Pp. 821-828.
(a) A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates’ free speech rights must be balanced against the State’s legitimate interest in confining prisoners [417 U.S. 817, 818] to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions. Pp. 822-824.
(b) Alternative means of communication remain open to the inmates; they can correspond by mail with persons (including media representatives), Procunier v. Martinez, 416 U.S. 396 ; they have rights of visitation with family, clergy, attorneys, and friends of prior acquaintance; and they have unrestricted opportunity to communicate with the press or public through their prison visitors. Pp. 824-828.
2. The rights of the media
appellants under the First and Fourteenth Amendments are not infringed by
415.071, which does not deny the press access to information available to the
general public. Newsmen, under California policy, are free to visit both
maximum security and minimum security sections of California penal institutions
and to speak with inmates whom they may encounter, and (unlike members of the
general public) are also free to interview inmates selected at random. “[T]he
First Amendment does not guarantee the press a constitutional right of special
access to information not available to the public generally.” Branzburg v.
Hayes, 408
U.S. 665, 684 . Pp. 829-835.
364 F. Supp. 196, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and
WHITE, BLACKMUN, and REHNQUIST, JJ., joined and in Part I of which POWELL, J.,
joined. POWELL, J., filed an opinion concurring in part and dissenting in part,
post, p. 835. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 836.
Fn [417 U.S. 817, 819]
MR. JUSTICE STEWART delivered the opinion of the Court.
These cases are here on cross-appeals from the judgment of a three-judge
District Court in the Northern District of California. The plaintiffs in the
District Court were four California prison inmates - Booker T. Hillery, Jr.,
John Larry Spain, Bobby Bly, and Michael Shane Guile - and three professional
journalists - Eve Pell, Betty Segal, and Paul Jacobs. The defendants were
Raymond K. Procunier, Director of the California Department of Corrections, and
several subordinate officers in that department. The plaintiffs brought the
suit to challenge the constitutionality, under the First and Fourteenth
Amendments, of 415.071 of the California Department of Corrections Manual,
which provides that “[p]ress and other media interviews with specific
individual inmates will not be permitted.” They sought both injunctive and
declaratory relief under 42 U.S.C. 1983. Section 415.071 was promulgated by
defendant Procunier under authority vested in him by 5058 of the California
Penal Code and is applied uniformly throughout the State’s penal system to
prohibit face-to-face interviews between press representatives and individual
inmates whom they specifically name and request to interview. [417 U.S. 817, 820] In
accordance with 28 U.S.C. 2281 and 2284, a three-judge court was convened to
hear the case. 1
The facts are undisputed. Pell, Segal, and Jacobs each requested permission
from the appropriate corrections officials to interview inmates Spain, Bly, and
Guile, respectively. In addition, the editors of a certain periodical requested
permission to visit inmate Hillery to discuss the possibility of their
publishing certain of his writings and to interview him concerning conditions
at the prison. 2 Pursuant
to 415.071, these requests were all denied. 3 The plaintiffs thereupon
sued to enjoin the continued enforcement of this regulation. The inmate
plaintiffs contended that 415.071 violates their rights of free speech [417 U.S. 817, 821] under
the First and Fourteenth Amendments. Similarly, the media plaintiffs asserted
that the limitation that this regulation places on their newsgathering activity
unconstitutionally infringes the freedom of the press guaranteed by the First
and Fourteenth Amendments.
The District Court granted the inmate plaintiffs’ motion for summary
judgment, holding that 415.071, insofar as it prohibited inmates from having
face-to-face communication with journalists, unconstitutionally infringed their
First and Fourteenth Amendment freedoms. With respect to the claims of the
media plaintiffs, the court granted the defendants’ motion to dismiss. The
court noted that “[e]ven under 415.071 as it stood before today’s ruling [that
inmates’ constitutional rights were violated by 415.071] the press was given
the freedom to enter the California institutions and interview at random,” and
concluded “that the even broader access afforded prisoners by today’s ruling sufficiently
protects whatever rights the press may have with respect to interviews with
inmates.” 364 F. Supp. 196, 200.
In No. 73-754, Corrections Director Procunier and the other defendants
appeal from the judgment of the District Court that 415.071 infringes the
inmate plaintiffs’ First and Fourteenth Amendment rights. In No. 73-918, the
media plaintiffs appeal the court’s rejection of their claims. We noted
probable jurisdiction of both appeals and consolidated the cases for oral
argument. 414
U.S. 1127, 1155 .
In No. 73-754, the inmate plaintiffs claim that 415.071, by prohibiting
their participation in face-to-face communication with newsmen and other
members of the general public, violates their right of free speech under the
First and Fourteenth Amendments. Although the constitutional right of free
speech has never been [417 U.S.
817, 822] thought to embrace a right to require a journalist or
any other citizen to listen to a person’s views, let alone a right to require a
publisher to publish those views in his newspaper, see Avins v. Rutgers, State
University of New Jersey, 385 F.2d 151 (CA3 1967); Chicago Joint Board,
Clothing Workers v. Chicago Tribune Co., 435 F.2d 470 (CA7 1970); Associates
& Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (CA9 1971), we proceed upon
the hypothesis that under some circumstances the right of free speech includes
a right to communicate a person’s views to any willing listener, including a
willing representative of the press for the purpose of publication by a willing
publisher.
We start with the familiar proposition that “[l]awful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.” Price
v. Johnston, 334
U.S. 266, 285 (1948). See also Cruz v. Beto, 405
U.S. 319, 321 (1972). In the First Amendment context a corollary of this
principle is that a prison inmate retains those First Amendment rights that are
not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system. Thus, challenges to prison
restrictions that are asserted to inhibit First Amendment interests must be
analyzed in terms of the legitimate policies and goals of the corrections
system, to whose custody and care the prisoner has been committed in accordance
with due process of law.
An important function of the corrections system is the deterrence of crime.
The premise is that by confining criminal offenders in a facility where they
are isolated from the rest of society, a condition that most people presumably
find undesirable, they and others will be deterred from committing additional
criminal offenses. This [417 U.S.
817, 823] isolation, of course, also serves a protective function
by quarantining criminal offenders for a given period of time while, it is
hoped, the rehabilitative processes of the corrections system work to correct
the offender’s demonstrated criminal proclivity. Thus, since most offenders
will eventually return to society, another paramount objective of the
corrections system is the rehabilitation of those committed to its custody.
Finally, central to all other corrections goals is the institutional
consideration of internal security within the corrections facilities
themselves. It is in the light of these legitimate penal objectives that a
court must assess challenges to prison regulations based on asserted
constitutional rights of prisoners.
The regulation challenged here clearly restricts one manner of communication
between prison inmates and members of the general public beyond the prison
walls. But this is merely to state the problem, not to resolve it. For the same
could be said of a refusal by corrections authorities to permit an inmate
temporarily to leave the prison in order to communicate with persons outside.
Yet no one could sensibly contend that the Constitution requires the
authorities to give even individualized consideration to such requests. Cf.
Zemel v. Rusk, 381
U.S. 1, 16 -17 (1965). In order properly to evaluate the constitutionality
of 415.071, we think that the regulation cannot be considered in isolation but
must be viewed in the light of the alternative means of communication permitted
under the regulations with persons outside the prison. We recognize that there “may
be particular qualities inherent in sustained, face-to-face debate, discussion
and questioning,” and “that [the] existence of other alternatives [does not]
extinguis[h] altogether any constitutional interest on the part of the
appellees in this particular form of access.” Kleindienst v. Mandel, [417 U.S. 817, 824] 408
U.S. 753, 765 (1972). But we regard the available “alternative means of
[communication as] a relevant factor” in a case such as this where “we [are]
called upon to balance First Amendment rights against [legitimate] governmental
. . . interests.” Ibid.
One such alternative available to California prison inmates is communication
by mail. Although prison regulations, until recently, called for the censorship
of statements, inter alia, that “unduly complain” or “magnify grievances,” that
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 censorship of prisoner mail far broader
than any legitimate interest of penal administration demands,” and accordingly
affirmed a district court judgment invalidating the regulations. Procunier v. Martinez,
416
U.S. 396, 416 (1974). In addition, we held that “[t]he interest of
prisoners and their correspondents in uncensored communication by letter,
grounded as it is in the First Amendment, is plainly a `liberty’ interest
within the meaning of the Fourteenth Amendment even though qualified of
necessity by the circumstance of imprisonment.” Accordingly, we concluded that
any “decision to censor or withhold delivery of a particular letter must be
accompanied by minimal procedural safeguards.” Id., at 418, 417. Thus, it is
clear that the medium of written correspondence affords inmates an open and
substantially unimpeded channel for communication with persons outside the
prison, including representatives of the news media.
Moreover, the visitation policy of the California Corrections Department
does not seal the inmate off from personal contact with those outside the
prison. Inmates are permitted to receive limited visits from members [417 U.S. 817, 825] of
their families, the clergy, their attorneys, and friends of prior acquaintance.
4 The selection of
these categories of visitors is based on the Director’s professional judgment
that such visits will aid in the rehabilitation of the inmate while not
compromising the other legitimate objectives of the corrections system. This is
not a case in which the selection is based on the anticipated content of the
communication between the inmate and the prospective visitor. If a member of
the press fell within any of these categories, there is no suggestion that he
would not be permitted to visit with the inmate. More importantly, however,
inmates have an unrestricted opportunity to communicate with the press or any
other member of the public through their families, friends, clergy, or
attorneys who are permitted to visit them at the prison. Thus, this provides
another alternative avenue of communication between prison inmates and persons
outside the prison.
We would find the availability of such alternatives unimpressive if they
were submitted as justification for governmental restriction of personal
communication among members of the general public. We have recognized, however,
that “[t]he relationship of state prisoners and the state officers who
supervise their confinement is far more intimate than that of a State and a
private [417 U.S. 817, 826]
citizen,” and that the “internal problems of state prisons involve
issues . . . peculiarly within state authority and expertise.” Preiser v.
Rodriguez, 411
U.S. 475, 492 (1973).
In Procunier v. Martinez, supra, we could find no legitimate governmental
interest to justify the substantial restrictions that had there been imposed on
written communication by inmates. When, however, the question involves the
entry of people into the prisons for face-to-face communication with inmates,
it is obvious that institutional considerations, such as security and related
administrative problems, as well as the accepted and legitimate policy
objectives of the corrections system itself, require that some limitation be
placed on such visitations. So long as reasonable and effective means of
communication remain open and no discrimination in terms of content is
involved, we believe that, in drawing such lines, “prison officials must be
accorded latitude.” Cruz v. Beto, 405
U.S., at 321 .
In a number of contexts, we have held “that reasonable `time, place and
manner’ regulations [of communicative activity] may be necessary to further
significant governmental interests, and are permitted.” Grayned v. City of
Rockford, 408
U.S. 104, 115 (1972); Cox v. New Hampshire, 312
U.S. 569, 575 -576 (1941); Poulos v. New Hampshire, 345
U.S. 395, 398 (1953); Cox v. Louisiana, 379
U.S. 536, 554 -555 (1965); Adderley v. Florida, 385
U.S. 39, 46 -48 (1966). “The nature of a place, the pattern of its normal
activities, dictate the kinds of regulations of time, place, and manner that
are reasonable.” Grayned, supra, at 116 (internal quotation marks omitted). The
“normal activity” to which a prison is committed - the involuntary confinement
and isolation of large numbers of people, some of whom have demonstrated a
capacity for violence - necessarily requires [417 U.S. 817, 827] that considerable attention be
devoted to the maintenance of security. Although they would not permit prison
officials to prohibit all expression or communication by prison inmates,
security considerations are sufficiently paramount in the administration of the
prison to justify the imposition of some restrictions on the entry of outsiders
into the prison for face-to-face contact with inmates.
In this case the restriction takes the form of limiting visitations to
individuals who have either a personal or professional relationship to the
inmate - family, friends of prior acquaintance, legal counsel, and clergy. In
the judgment of the state corrections officials, this visitation policy will
permit inmates to have personal contact with those persons who will aid in
their rehabilitation, while keeping visitations at a manageable level that will
not compromise institutional security. Such considerations are peculiarly
within the province and professional expertise of corrections officials, and,
in the absence of substantial evidence in the record to indicate that the
officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such matters. Courts
cannot, of course, abdicate their constitutional responsibility to delineate
and protect fundamental liberties. But when the issue involves a regulation
limiting one of several means of communication by an inmate, the institutional
objectives furthered by that regulation and the measure of judicial deference
owed to corrections officials in their attempt to serve those interests are
relevant in gauging the validity of the regulation.
Accordingly, in light of the alternative channels of communication that are
open to prison inmates, 5 we
[417 U.S. 817, 828] cannot
say on the record in this case that this restriction on one manner in which
prisoners can communicate with persons outside of prison is unconstitutional.
So long as this restriction operates in a neutral fashion, without regard to
the content of the expression, it falls within the “appropriate rules and
regulations” to which “prisoners necessarily are subject,” Cruz v. Beto, supra,
at 321, and does not abridge any First Amendment freedoms retained by prison
inmates. 6 [417 U.S. 817, 829]
In No. 73-918, the media plaintiffs ask us to hold that the limitation on
press interviews imposed by 415.071 violates the freedom of the press
guaranteed by the First and Fourteenth Amendments. They contend that, irrespective
of what First Amendment liberties may or may not be retained by prison inmates,
members of the press have a constitutional right to interview any inmate who is
willing to speak with them, in the absence of an individualized determination
that the particular interview might create a clear and present danger to prison
security or to some other substantial interest served by the corrections
system. In this regard, the media plaintiffs do not claim any impairment of
their freedom to publish, for California imposes no restrictions on what may be
published about its prisons, the prison inmates, or the officers who administer
the prisons. Instead, they rely on their right to gather news without
governmental interference, which the media plaintiffs assert includes a right [417 U.S. 817, 830] of
access to the sources of what is regarded as newsworthy information.
We note at the outset that this regulation is not part of an attempt by the
State to conceal the conditions in its prisons or to frustrate the press’
investigation and reporting of those conditions. Indeed, the record
demonstrates that, under current corrections policy, both the press and the
general public are accorded full opportunities to observe prison conditions. 7 The Department of
Corrections regularly conducts public tours through the prisons for the benefit
of interested citizens. In addition, newsmen are permitted to visit both the
maximum security and minimum security sections of the institutions and to stop
and speak about any subject to any inmates whom they might encounter. If
security considerations permit, corrections personnel will step aside to permit
such interviews to be confidential. Apart from general access to all parts of
the institutions, newsmen are also permitted to enter the prisons to interview
inmates selected at random by the corrections officials. By the same token, if
a newsman wishes to write a story on a particular prison program, he is
permitted to sit in on group meetings and to interview the inmate participants.
In short, members [417 U.S. 817,
831] of the press enjoy access to California prisons 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 representatives of the press. This restriction is of recent
vintage, having been imposed in 1971 in response to a violent episode that the
Department of Corrections felt was at least partially attributable to the
former policy with respect 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 the press
were accorded this privilege; other members of the general public did not have
the benefit of such an unrestricted visitation policy. Thus, the promulgation
of 415.071 did not impose a discrimination against press access, but merely
eliminated a special privilege formerly given to representatives of the press
vis-a-vis members of the public generally. 8
In practice, it was found that the policy in effect prior to the
promulgation of 415.071 had resulted in press attention being concentrated on a
relatively small number of inmates who, as a result, became virtual “public
figures” within the prison society and gained a disproportionate degree of
notoriety and influence among their [417
U.S. 817, 832] fellow inmates. Because of this notoriety and
influence, these inmates often became the source of severe disciplinary
problems. For example, extensive press attention to an inmate who espoused a
practice of non-cooperation with prison regulations encouraged other inmates to
follow suit, thus eroding the institutions’ ability to deal effectively with
the inmates generally. Finally, in the words of the District Court, on August
21, 1971, “[d]uring an escape attempt at San Quentin three staff members and
two inmates were killed. This was viewed by the officials as the climax of
mounting disciplinary problems caused, in part, by its liberal posture with
regard to press interviews, and on August 23 415.071 was adopted to mitigate
the problem.” 364 F. Supp., at 198. It is against this background that we
consider the media plaintiffs’ claims under the First and Fourteenth
Amendments.
The constitutional guarantee of a free press “assures the maintenance of our
political system and an open society,” Time, Inc. v. Hill, 385
U.S. 374, 389 (1967), and secures “the paramount public interest in a free
flow of information to the people concerning public officials,” Garrison v.
Louisiana, 379
U.S. 64, 77 (1964). See also New York Times Co. v. Sullivan, 376
U.S. 254 (1964). By the same token, “`[a]ny system of prior restraints of
expression comes to this Court bearing a heavy presumption against its
constitutional validity.’“ New York Times Co. v. United States, 403
U.S. 713, 714 (1971); Organization for a Better Austin v. Keefe, 402
U.S. 415 (1971); Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963); Near v. Minnesota ex rel. Olson, 283
U.S. 697 (1931). Correlatively, the First and Fourteenth Amendments also
protect the right of the public to receive such information and ideas as are
published. Kleindienst v. Mandel, 408
U.S., at 762 -763; Stanley v. Georgia, 394
U.S. 557, 564 (1969). [417
U.S. 817, 833]
In Branzburg v. Hayes, 408
U.S. 665 (1972), the Court went further and acknowledged that “news
gathering is not without its First Amendment protections,” id., at 707, for “without
some protection for seeking out the news, freedom of the press could be
eviscerated,” id., at 681. In Branzburg the Court held that the First and
Fourteenth Amendments were not abridged by requiring reporters to disclose the
identity of their confidential sources to a grand jury when that information
was needed in the course of a good-faith criminal investigation. The Court
there could “perceive no basis for holding that the public interest in law
enforcement and in ensuring effective grand jury proceedings [was] insufficient
to override the consequential, but uncertain, burden on news gathering that is
said to result from insisting that reporters, like other citizens, respond to
relevant questions put to them in the course of a valid grand jury
investigation or criminal trial,” id., at 690-691.
In this case, the media plaintiffs contend that 415.071 constitutes
governmental interference with their newsgathering activities that is neither
consequential nor uncertain, and that no substantial governmental interest can
be shown to justify the denial of press access to specifically designated
prison inmates. More particularly, the media plaintiffs assert that, despite
the substantial access to California prisons and their inmates accorded
representatives of the press - access broader than is accorded members of the
public generally - face-to-face interviews with specifically designated inmates
is such an effective and superior method of newsgathering that its curtailment
amounts to unconstitutional state interference with a free press. We do not
agree.
“It has generally been held that
the First Amendment does not guarantee the press a constitutional right of
special access to information not available to the public generally. . . .
Despite the fact that news gathering may [417 U.S. 817, 834] be hampered, the press is
regularly excluded from grand jury proceedings, our own conferences, the
meetings of other official bodies gathering in executive session, and the
meetings of private organizations. Newsmen have no constitutional right of
access to the scenes of crime or disaster when the general public is excluded.”
Branzburg v. Hayes, supra, at 684-685. Similarly, newsmen have no
constitutional right of access to prisons or their inmates beyond that afforded
the general public.
The First and Fourteenth Amendments bar government from
interfering in any way with a free press. The Constitution does not, however,
require government to accord the press special access to information not shared
by members of the public generally. 9 It is one thing to say
that a journalist is free to seek out sources of information not available to
members of the general public, that he is entitled to some constitutional
protection of the confidentiality of such sources, cf. Branzburg v. Hayes,
supra, and that government cannot restrain the publication of news emanating
from such sources. Cf. New York Times Co. v. United States, supra. It is quite
another thing to suggest that the Constitution imposes upon government the
affirmative duty to make available to journalists sources of information not
available to members of the public generally. That proposition finds no support
in the words of the Constitution or in any decision [417 U.S. 817, 835] of this Court.
Accordingly, since 415.071 does not deny the press access to sources of
information available to members of the general public, we hold that it does
not abridge the 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 of speech of the prison inmates and affirm its
judgment that that regulation does not abridge the constitutional right of a
free press. Accordingly, the judgment is vacated, and the cases are remanded to
the District Court for further proceedings consistent with this opinion.
It is so ordered.
[Footnote
1 ] This litigation was first initiated before a single judge and proceeded
for nearly a year with the court’s attention focused on the interview practice
at San Quentin State Penitentiary, where all the inmate plaintiffs are
confined, where the interviews sought by the media plaintiffs were to occur,
and where all the defendants, except Mr. Procunier, are employed. After the matter
was briefed and argued, the single judge preliminarily enjoined the enforcement
of 415.071. Only then did the defendants bring to the court’s attention that
415.071 was a regulation of statewide application. Thereafter a three-judge
court was convened to pass on the constitutional validity of the regulation.
[Footnote 2 ] The
periodical has since ceased publication and its editors did not join the media
plaintiffs in this litigation.
[Footnote 3 ] There
is some question as to whether the interview between Hillery and the magazine
editors was denied under the authority of 415.071. Department of Corrections
interview policy permits, on a 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 determination that the
meeting was not in fact necessary to effectuate the publication of Hillery’s
works. Hillery, on the other hand, notes that the editors had indicated to the
prison officials that they also wished to discuss with him the conditions in
the prison in order to publish an article on that subject. Thus, it appears
that the denial was in all likelihood based at least in part on 415.071.
[Footnote 4 ] This
policy does not appear to be codified or otherwise expressly articulated in any
generally applicable rule or regulation. The statement of visiting privileges
for San Quentin State Penitentiary indicates that all visitors must be approved
by the corrections officials and must be either “members of the family or
friends of long standing.” It also permits visits by attorneys to their
clients. Although nothing is said in this statement about visits by members of
the clergy, there is no dispute among the parties that the practice of the
Department of Corrections is to permit such visits. There is also no
disagreement among the parties that this visitation policy is generally applied
by the Department throughout the state corrections system.
[Footnote 5 ] It is
suggested by the inmate appellees that the use of the mails as an alternative
means of communication may not be effective in [417 U.S. 817, 828] the case of prisoners who are
inarticulate or even illiterate. There is no indication, however, that any of
the four inmates before the Court suffer from either of these disabilities.
Indeed, the record affirmatively shows that two of the inmates are published
writers. Although the complaint was filed as a class action, the plaintiffs
never moved the District Court to certify the case as a class action as
required by Fed. Rules Civ. Proc. 23 (b) (3) and (c). Thus, the short answer to
the inmates’ contention is that there is neither a finding by the District
Court nor support in the record for a finding that the alternative channels of
communication are not an effective means for the inmate appellees to express
themselves to persons outside the prison.
Even with respect to inmates who may not be literate or articulate, however,
there is no suggestion that the corrections officials would not permit such
inmates to seek the aid of fellow inmates or of family and friends who visit
them to commit their thoughts to writing for communication to individuals in
the general public. Cf. Johnson v. Avery, 393
U.S. 483 (1969). Merely because such inmates may need assistance to utilize
one of the alternative channels does not make it an ineffective alternative,
unless, of course, the State prohibits the inmate from receiving such
assistance.
[Footnote 6 ] The
inmates argue that restricting their access to press representatives
unconstitutionally burdens their First and Fourteenth Amendment right to
petition the government for the redress of grievances. Communication with the
press, the inmates contend, provides them with their only effective opportunity
to communicate their grievances, through the channel of public opinion, to the
legislative and executive branches of the government. We think, however, that
the alternative means of communication with the press that are available to
prisoners, together with the substantial access to prisons that California [417 U.S. 817, 829] accords
the press and other members of the public, see infra, at 830-831, satisfies
whatever right the inmates may have to petition the government through the
press.
We also note that California accords prison inmates substantial
opportunities to petition the executive, legislative, and judicial branches of
government directly. Section 2600 of the California Penal Code permits an
inmate to correspond confidentially with any public officeholder. And various
rules promulgated by the Department of Corrections explicitly permit an inmate
to correspond with the Governor, any other elected state or federal official,
and any appointed head of a state or federal agency. Similarly, California has
acted to assure prisoners the right to petition for judicial relief. See, e.
g., In re Jordan, 7 Cal. 3d 930, 500 P.2d 873 (1972); In re Van Geldern, 5 Cal.
3d 832, 489 P.2d 578 (1971); In re Harrell, 2 Cal. 3d 675, 470 P.2d 640 (1970).
Section 845.4 of the California Government Code also makes prison officials
liable for intentional interference with the right of a prisoner to obtain
judicial relief from his confinement.
[Footnote 7 ] This
policy reflects a recognition that the conditions in this Nation’s prisons are
a matter that is both newsworthy and of great public importance. AS THE CHIEF
JUSTICE has commented, we cannot “continue . . . to brush under the rug the
problems of those who are found guilty and subject to criminal sentence. . . .
It is a melancholy truth that it has taken the tragic prison outbreaks of the
past three years to focus widespread public attention on this problem.” Burger,
Our Options are Limited, 18 Vill. L. Rev. 165, 167 (1972). Along the same
lines, THE CHIEF JUSTICE has correctly observed that “[i]f we want prisoners to
change, public attitudes toward prisoners and ex-prisoners must change. . . . A
visit to most prisons will make you a zealot for prison reform.” W. Burger, For
Whom the Bell Tolls, reprinted at 25 Record of N. Y. C. B. A. (Supp.) 14, 20,
21 (1970).
[Footnote 8 ] It
cannot be contended that because California permits family, friends, attorneys,
and clergy to visit inmates, it cannot limit visitations by the press. No
member of the general public who does not have a personal or professional
relationship to the inmate is permitted to enter the prison and name an inmate
with whom he would like to engage in face-to-face discourse. Thus, the press is
granted the same access in this respect to prison inmates as is accorded any
member of the general public. Indeed, as is noted in the text, the aggregate
access that the press has to California prisons and their inmates is
substantially greater than that of the general public.
[Footnote 9 ] As Mr.
Chief Justice Warren put the matter in writing for the Court in Zemel v. Rusk, 381
U.S. 1, 16 -17 (1965), “[t]here are few restrictions on action which could
not be clothed by ingenious argument in the garb of decreased data flow. For example,
the prohibition of unauthorized entry into the White House diminishes the
citizen’s opportunities to gather information he might find relevant to his
opinion of the way the country is being run, but that does not make entry into
the White House a First Amendment right. The right to speak and publish does
not carry with it the unrestrained right to gather information.”
MR. JUSTICE POWELL, concurring in part and dissenting in part.
These cross-appeals concern the constitutionality, under the First and
Fourteenth Amendments, of a regulation of the California Department of
Corrections that prohibits all personal interviews of prison inmates by
representatives of the news media. This regulation is substantially identical
to the United States Bureau of Prisons policy statement whose validity is at
issue in Saxbe v. Washington Post Co., post, p. 843. For the reasons stated in
my dissenting opinion in that case, post, p. 850, I would hold that California’s
absolute ban against prisoner-press interviews impermissibly restrains the
ability of the press to perform its constitutionally established function of
informing the people on the conduct of their government. Accordingly, I dissent
from the judgment of the Court.
The California cross-appeals differ from the Washington Post case in one
significant respect. Here the constitutionality of the interview ban is
challenged by prisoners as well as newsmen. Thus these appeals, unlike
Washington Post, raise the question whether inmates as [417 U.S. 817, 836] individuals have a
personal constitutional right to demand interviews with willing reporters.
Because I agree with the majority that they do not, I join Part I of the
opinion of the Court.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL
join, dissenting. *
These cases involve the constitutionality, under the First and Fourteenth
Amendments, of prison regulations limiting communication between state and
federal prisoners and the press. Nos. 73-754 and 73-918 are cross-appeals from
the judgment of a three-judge District Court for the Northern District of
California. 364 F. Supp. 196. Suit was brought in that court by four California
state prisoners and three professional journalists challenging the
constitutionality of California Department of Corrections Manual 415.071 which
imposes an absolute ban on media interviews with individually designated
inmates.
The court upheld the prisoners’ claim that this regulation is violative of
their right of free speech, and, in No. 73-754, the Director of the California
Department of Corrections appeals from the court’s injunction against further
enforcement of the regulation. As to the journalists’ claim, the court noted: “The
media plaintiffs herein and amicus curiae argue that 415.071 is violative of
not only the prisoners’ First Amendment rights, but also the press’. The court
disagrees.” 364 F. Supp., at 199. In No. 73-918, the journalists appeal this
rejection of their claim.
No. 73-1265 involves a media challenge to Federal Bureau of Prisons Policy
Statement 1220.1A, 4 (b) (6), which prohibits press interviews with any
particular federal [417 U.S. 817,
837] prisoner in any medium security or maximum security
facility. The District Court held the total ban violative of the First
Amendment’s free press guarantee and enjoined its enforcement. 357 F. Supp.
770. The Court of Appeals affirmed sub nom. Washington Post Co. v. Kleindienst,
161 U.S. App. D.C. 75, 494 F.2d 994. As the majority notes, “[t]he policies of
the Federal Bureau of Prisons regarding visitations to prison inmates do not
differ significantly from the California policies” here under review.
In analyzing the prisoner challenge to California’s absolute ban on media
interviews with individual inmates, I start with the proposition that “foremost
among the Bill of Rights of prisoners in this country, whether under state or
federal detention, is the First Amendment. Prisoners are still `persons’
entitled to all constitutional rights unless their liberty has been
constitutionally curtailed by procedures that satisfy all the requirements of
due process. . . . Free speech and press within the meaning of the First
Amendment are, in my judgment, among the pre-eminent privileges and immunities
of all citizens.” Procunier v. Martinez, 416
U.S. 396, 428 -429 (DOUGLAS, J., concurring in judgment). With that
premise, I cannot agree with the Court that California’s grossly overbroad
restrictions on prisoner speech are constitutionally permissible. I agree that
prison discipline, inmate safety, and rehabilitation must be considered in
evaluating First Amendment rights in the prison context. First Amendment
principles must always be applied “in light of the special characteristics of
the . . . environment.” Tinker v. Des Moines School District, 393
U.S. 503, 506 ; Healy v. James, 408
U.S. 169, 180 . But the prisoners here do not contend that prison officials
are powerless to impose reasonable limitations on [417 U.S. 817, 838] visits by the media which are
necessary in particularized circumstances to maintain security, discipline, and
good order.
All that the prisoners contend, and all that the courts below found, is that
these penal interests cannot be used as a justification for an absolute ban on
media interviews because “[b]road prophylactic rules in the area of free
expression are suspect. . . . Precision of regulation must be the touchstone in
an area so closely touching our most precious freedoms.” NAACP v. Button, 371
U.S. 415, 438 . And see Cantwell v. Connecticut, 310
U.S. 296, 311 .
It is true that the prisoners are left with other means of expression such
as visits by relatives and communication by mail. But the State can hardly
defend an overly broad restriction on expression by demonstrating that it has
not eliminated expression completely.
As Mr. Justice Black has said:
“I cannot accept my Brother HARLAN’S
view [in dissent] that the abridgment of speech and press here does not violate
the First Amendment because other methods of communication are left open. This
reason for abridgment strikes me as being on a 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 be
reduced by prohibiting all its employees from discussing governmental
operations in interviews with the media, leaving criticism of the State to
those with the time, energy, ability, and inclination to communicate [417 U.S. 817, 839] through
the mails. The prohibition here is no less offensive to First Amendment
principles; it flatly prohibits interview communication with the media on the
government’s penal operations by the only citizens with the best knowledge and
real incentive to discuss them.
I agree with the court below that the State’s interest in order and prison
discipline cannot justify its total ban on all media interviews with any
individually designated inmate on any matter whatsoever. Such a coarse attempt
at regulation is patently unconstitutional in an area where “[p]recision of
regulation must be the touchstone.” NAACP v. Button, supra, at 438; Elfbrandt
v. Russell, 384
U.S. 11, 18 . I would affirm the District Court’s judgment in this regard.
In Nos. 73-918 and 73-1265, the media claim that the state and federal
prison regulations here, by flatly prohibiting interviews with inmates selected
by the press, impinge upon the First Amendment’s free press guarantee, directly
protected against federal infringement and protected against state infringement
by the Fourteenth Amendment. In rejecting the claim, the Court notes that the
ban on access to prisoners applies as well to the general public, and it holds
that “newsmen have no constitutional right of access to prisons or their
inmates beyond that afforded the general public.” Ante, at 834.
In dealing with the free press guarantee, it is important to note that the
interest it protects is not possessed by the media themselves. In enjoining
enforcement of the federal regulation in No. 73-1265, Judge Gesell did not vindicate
any right of the Washington Post, but rather the right of the people, the true
sovereign under our constitutional scheme, to govern in [417 U.S. 817, 840] an informed manner. “The
press has a preferred position in our constitutional scheme, not to enable it
to make money, not to set newsmen apart as a favored class, but to bring
fulfillment to the public’s right to know. The right to know is crucial to the
governing powers of the people.” Branzburg v. Hayes, 408
U.S. 665, 721 (DOUGLAS, J., dissenting).
Prisons, like all other public institutions, are ultimately the
responsibility of the populace. Crime, like the economy, health, education,
defense, and the like, is a matter of grave concern in our society and people
have the right and the necessity to know not only of the incidence of crime but
of the effectiveness of the system designed to control it. “On any given day,
approximately 1,500,000 people are under the authority of [federal, state and
local prison] systems. The cost to taxpayers is over one billion dollars
annually. Of those individuals sentenced to prison, 98% will return to society.”
1 The public’s
interest in being informed about prisons is thus paramount.
As with the prisoners’ free speech claim, no one asserts that the free press
right is such that the authorities are powerless to impose reasonable regulations
as to the time, place, and manner of interviews to effectuate prison discipline
and order. The only issue here is whether the complete ban on interviews with
inmates selected by the press goes beyond what is necessary for the protection
of these interests and infringes upon our cherished right of a free press. As
the Court of Appeals noted in No. 73-1265: “[W]hile we do not question that the
concerns [417 U.S. 817, 841]
voiced by the Bureau [of Prisons] are legitimate interests that
merit protection, we must agree with the District Court that they do not,
individually or in total, justify the sweeping absolute ban that the Bureau has
chosen to impose.” 161 U.S. App. D.C., at 86, 494 F.2d, at 1005.
It is thus not enough to note that the press - the institution which “[t]he
Constitution specifically selected . . . to play an important role in the
discussion of public affairs” 2 - is denied no more
access to the prisons than is denied the public generally. The prohibition of
visits by the public has no practical effect upon their right to know beyond
that achieved by the exclusion of the press. The average citizen is most
unlikely to inform himself about the operation of the prison system by requesting
an interview with a particular inmate with whom he has no prior relationship.
He is likely instead, in a society which values a free press, to rely upon the
media for information.
It is indeed ironic for the Court to justify the exclusion of the press by
noting that the government has gone beyond the press and expanded the exclusion
to include the public. Could the government deny the press access to all public
institutions and prohibit interviews with all governmental employees? Could it
find constitutional footing by expanding the ban to deny such access to
everyone?
I agree with the courts below in No. 73-1265 that the absolute ban on press interviews with specifically designated federal inmates is far broader than is necessary to protect any legitimate governmental interests and is an unconstitutional infringement on the public’s right to know protected by the free press guarantee of the First Amendment. I would affirm the judgment in this regard. [417 U.S. 817, 842] Since this basic right is guaranteed against state infringement by the application of the First Amendment to the States through the Fourteenth, 3 California’s absolute ban can fare no better. I would reverse the District Court’s rejection of this claim in No. 73-918.
Notes:
[Footnote * ] [This
opinion applies also to No. 73-1265, Saxbe et al. v. Washington Post Co. et
al., post, p. 843.]
[Footnote 1 ]
Subcommittee on Courts, Civil Liberties, and the Administration of Justice of
the House Committee on the Judiciary, 93d Cong., 2d Sess., Report on the
Inspection of Federal Facilities at Leavenworth Penitentiary and the Medical
Center for Federal Prisoners 2 (Comm. Print 1974).
[Footnote 2 ] Mills
v. Alabama, 384
U.S. 214, 219 .
[Footnote 3 ] “While
Mr. Chief Justice Hughes in Stromberg v. California, 283
U.S. 359 , stated that the First Amendment was applicable to the States by
reason of the Due Process Clause of the Fourteenth, it has become customary to
rest on the broader foundation of the entire Fourteenth Amendment. Free speech
and press within the meaning of the First Amendment is, in my judgment, one of
the pre-eminent privileges and immunities of all citizens.” Procunier v.
Martinez, 416
U.S. 396, 428 -429 (DOUGLAS, J., concurring in judgment). [417 U.S. 817, 843]