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.
417 U. S.
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
Page 417 U. S. 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.
417 U. S.
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.
417 U. S.
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,
408 U. S. 684.
Pp.
417 U. S.
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.
417 U. S. 835.
DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
417 U. S.
836.
Page 417 U. S. 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.
Page 417 U. S. 820
In accordance with 28 U.S.C. §§ 2281 and 2284, a three-judge
court was convened to hear the case. [
Footnote 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. [
Footnote 2]
Pursuant to § 415.071, these requests were all denied. [
Footnote 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
Page 417 U. S. 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.
I
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
Page 417 U. S. 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,
334 U. S. 285
(1948).
See also Cruz v. Beto, 405 U.
S. 319,
405 U. S. 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
Page 417 U. S. 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,
381 U. S. 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, 408
Page 417 U. S. 824
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 U. S. 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
416 U. S. 418,
416 U. S. 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
Page 417 U. S. 825
of their families, the clergy, their attorneys, and friends of
prior acquaintance. [
Footnote
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
Page 417 U. S. 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,
411 U. S. 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
405 U. S.
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,
408 U. S. 115
(1972);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S.
575-576 (1941);
Poulos v. New Hampshire,
345 U. S. 395,
345 U. S. 398
(1953);
Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
554-555 (1965);
Adderley v. Florida,
385 U. S. 39,
385 U. S. 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
408 U. S. 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
Page 417 U. S. 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, [
Footnote 5] we
Page 417 U. S. 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
405 U. S. 321,
and does not abridge any First Amendment freedoms retained by
prison inmate. [
Footnote 6]
Page 417 U. S. 829
II
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
Page 417 U. S. 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. [
Footnote 7] The Department of
Corrections regularly conducts public tours through the prisons for
the benefit of interested citizens. In addition, new men 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
Page 417 U. S. 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
vs-a-vs members of the public generally. [
Footnote 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
Page 417 U. S. 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 noncooperation 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,
385 U. S. 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,
379 U. S. 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,
403 U. S. 714
(1971); Organization for a Better Austin v. Keefe,
402 U. S. 415
(1971); Bantam Books, Inc. v. Sullivan, 372 U. S.
58, 372 U. S. 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 408 U. S.
762-763; Stanley v. Georgia, 394 U.
S. 557, 394 U. S. 564
(1969).
Page 417 U. S. 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
408 U. S. 707,
for "without some protection for seeking out the news, freedom of
the press could be eviscerated,"
id. at
408 U. S. 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
408 U. S.
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
Page 417 U. S. 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
408 U. S.
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.
[
Footnote 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
Page 417 U. S. 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.
* Together with No. 73-754,
Procunier, Corrections Director
v. Hillery et al., also on appeal from the same court.
[
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 state-wide
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 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
accords the press and other members of the public,
see
infra at
417 U. S.
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,
381 U. S. 117
(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.
417 U. S. 843. For
the reasons stated in my dissenting opinion in that case,
post, p.
417 U. S. 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
Page 417 U. S. 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
417 U. S.
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
Page 417 U. S. 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.
I
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 preeminent privileges and immunities
of all citizens."
Procunier v. Martinez, 416 U.
S. 396,
416 U. S.
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,
393 U. S. 506;
Healy v. James, 408 U. S. 169,
408 U. S. 180.
But the prisoners here do not contend that prison officials are
powerless to impose reasonable limitations on
Page 417 U. S. 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,
371 U. S. 438.
And see Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 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,
377 U. S. 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
Page 417 U. S. 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
371 U. S. 438;
Elfbrandt v. Russell, 384 U. S. 11,
384 U. S. 18. I
would affirm the District Court's judgment in this regard.
II
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
417 U. S.
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
Page 417 U. S. 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,
408 U. S. 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.
[
Footnote 2/1]"
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
Page 417 U. S. 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" [
Footnote 2/2] -- 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.
Page 417 U. S. 842
Since this basic right is guaranteed against state infringement
by the application of the First Amendment to the States through the
Fourteenth, [
Footnote 2/3]
California's absolute ban can fare no better. I would reverse the
District Court's rejection of this claim in No. 73-918.
* [This opinion applies also to No. 73-1265,
Saxbe et al. v.
Washington Post Co. et al., post, p.
417 U. S.
843.]
[
Footnote 2/1]
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 2/2]
Mills v. Alabama, 384 U. S. 214,
384 U. S.
219.
[
Footnote 2/3]
"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 preeminent privileges and immunities of all
citizens."
Procunier v. Martinez, 416 U.
S. 396,
416 U. S.
428-429 (DOUGLAS, J., concurring in judgment).