concurring in part and dissenting in part:
In this case a probation restriction against approaching the Trident Submarine Base, although innocuous on its face, infringes on the fundamental constitutional rights of freedom of speech and freedom of assembly. I respectfully dissent from that portion of the majority opinion which upholds the probation condition, although I concur in the remainder of the opinion.
Unlike the selfish motivation for most criminal conduct, the actions of the defendants in this case are based on a desire to publicize their belief that a federal program threatens the public welfare. By unlawfully trespassing they have violated the law and may properly be punished. 18 U.S.C. § 1382. Insofar that they seek by lawful means to inform members of the public of their views, however, their activities are in accord with our country’s fundamental heritage of permitting free expression, even of unpopular views.
The center at which the protestors met is a privately owned building known as “Ground Zero,” located within 250 feet of the fence surrounding the base. Moreover, only when cars stop at the entrance to the base is there a viable opportunity to offer literature to those entering the base. The probation condition thus substantially impedes the defendants’ first amendment rights of freedom of expression and assembly.
I agree with the majority’s statement that ordinarily “line-drawing in probation matters is best left to the discretion of the sentencing judge,” majority opinion at 568 supra, but our opinions make it clear that careful review is required of probation conditions that infringe on the lawful exercise of first amendment rights. As the court stated in United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc), although conditions infringing constitutional rights are certainly not presumed impermissible,
[cjonditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety.... [I]t is necessary to recognize that when fundamental rights are curbed it must be done sensitively and with a keen appreciation that the infringement must serve the broad purposes of the Probation Act.
This concern.is reflected in Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), where we noted that such restrictions are permissible when nec*569essary “to accomplish the essential needs of the state and public order.”
This issue has arisen in the related area of restrictions on the first amendment rights of prisoners. Recently in Wheeler v. United States, 640 F.2d 1116 (9th Cir. 1981), we considered a postsenteneing order that prevented a prisoner from communicating with ten named individuals. We stated that:
Procunier [Procnnier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)] . . . permits an invasion of a prisoner’s fundamental constitutional right of free speech only where the intrusion is so tailored that it furthers the substantial governmental interest without unduly interfering with the prisoner’s First Amendment freedoms.
Id. at 1126.
I do not believe the probation condition in this case is tailored to meet either a goal of rehabilitation or public safety. “A balancing approach has been articulated so as to facilitate an accommodation between the practical needs of the probation system and the constitutional guarantees of the Bill of Rights.” United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978). Here we must balance the probational benefits against the restriction on the exercise of first amendment rights.
The conduct sought to be prohibited in this case is unlawful trespass on the submarine base. Prohibiting presence within 250 feet of the fence surrounding the base has, at best, a marginal relationship to protection against trespass. As aptly stated by the appellants:
The Trident base is not a lettuce patch into which protestors jump, rabbit-like, upon sight. No planned legal leafletting or demonstration has ever ripened into an illegal one. Acts of trespass are planned months in advance ....
Thus the probation condition has only a highly tenuous connection to protection of the public.
Moreover, the condition has no bearing on the rehabilitation of the defendants, the other prong on which it must depend for its validity. Unlike the judge in Malone, the court here did not believe that it was necessary to hinder the appellants from associating with one another or to prevent them from protesting against the Trident program. Consequently the prohibition against exercising the rights of association and expression in a particular area, whether it is 250 feet, 300 feet or several miles away from the base, has no effect on rehabilitation.
Weighing the minimal probational benefits against the infringement imposed, it is clear that the prohibition strikes at the core of constitutional rights vital to the fabric of our political system, which permits free criticism of governmental decisions. By this relatively innocuous appearing condition, the appellants’ right to protest and seek change is substantially muzzled. The application of any balancing test results in the conclusion that under the circumstances of this case the restriction is unwarranted. I would reverse the imposition of the probation condition.