Pell v. Procunier

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 fed*837eral prisoner in any medium security or maximum security facility. The District Court held the total ban vio-lative 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 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 *838visits 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 *839through 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 “[precision 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.

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 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 *840an 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: “[WJhile we do not question that the concerns *841voiced 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?

1 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 re*842gard. 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.

[This opinion applies also to No. 73-1265, Saxbe et al. v. Washington Post Co. et al., post, p. 843.]

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).

Mills v. Alabama, 384 U. S. 214, 219.

“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).