(dissenting) :
On this appeal we see The Legal Aid Society, a venerable organization long supported by private charity and more recently also by large public grants, assuming the role of solicitors for a prisoners’ union.1 The officials in charge of discipline at Green Haven Prison, a maximum security institution, regarded the despatch to hundreds of inmates of the massive communication here at issue, most of it unnecessary on any view, as a threat to the maintenance of order. Respect for proper federal-state relations forbids that their judgment should be east aside.
Judge Smith rightly criticizes the district judge’s “easy characterization of the Legal Aid letter as pure legal advice,” condemns the “positive tone about the probable outcome of the PERB [Public Employees’ Relations Board] proceeding,” and censures the note “of confident assumption that the recognition of the union is an event whose occurrence is quite certain rather than merely marginally possible.” While one would have supposed that these sound observations alone would call for reversal, they are a long way from conveying the full flavor of this case.
The demand of February 7, 1972, attached to The Legal Aid Society’s letter to the inmates, was not its first approach to the Commissioner of Correction on recognition of prisoners’ unions. The Society had taken up the matter in October, 1971, and was promptly advised by counsel to the Commissioner, with what seems obvious correctness, that “The relationship of the inmates to the Department of Correctional Services is *1249not that of an employer-employee,”2 to which alone the Public Employees’ Fair Employment Act, N.Y. Civil Service Law, Art. 14, applies, and that consequently “The Department of Correctional Services will not permit nor recognize any inmate labor organization within the Department.” Nevertheless, as recounted in Judge Smith’s opinion, the Superintendent allowed organization cards to be circulated and signed. Some eight or nine hundred inmates signed authorizations that got into the Society’s hands, in ways not clearly revealed by the skimpy record; this, the Society tells us, established a client-lawyer relationship between the inmates and itself for the promotion of a prisoners’ union. While the concurring opinion contains interesting discussion, with which I do not disagree, about the desirability of better methods for the communication of prisoners’ grievances before these reach the boiling point, there is nothing to indicate that the Green Haven officials would have opposed this, or other formation of prisoner groups, such as one recently described in the press where a NAACP chapter was formed in a federal prison with the full assent of the superintendent. But none of this has any relevance here. The “Dear Union Member” letter stated in no uncertain terms that the union was to engage in collective bargaining on salaries, wages, hours and other conditions of employment, with the Legal Aid Society bargaining on the union’s behalf in consultation with the inmates, and, as pointed out below, many inmates, few of whom are skilled lawyers, could well have supposed that the bargaining would encompass other matters as well.
The letter, seven pages of single-spaced typewriting, begins by stating that the Union “was publicly announced” on the morning of February 7 at the offices of the New York Urban Coalition; that recognition had been demanded; that a Citizens’ Advisory Council had been formed; and that the president of the Retail and Wholesale Distributive Workers Union had approved affiliation. The letter proceeds to state that the Society had been requested — just how or in what manner does not appear — “to provide further legal advice as to the role it [the union] can play how it will operate, and how to deal with problems that may arise.” It then makes the positive assertion, “The Commissioner and/or the Superintendent are empowered by law to recognize your union as the collective bargaining agent of all prisoners in the institution,” although the Society knew (but did not inform its “clients”) that the Commissioner believed the contrary, on the best of grounds, and that “grant of recognition would be the simplest and most expeditious way to commence cooperation between your union and the administration in improving conditions,” although the Society knew (but did not inform its “clients”) that the Commissioner had no intention of doing anything of the sort. After describing the legal steps that would become necessary if the prison officials acted as they had told the Society they would (and in fact did only two days later), the letter contains several pages describing the halcyon future that will — not would — exist when recognition is — not might be— achieved. An important phase of this is “grievance procedures,” described so broadly that inmates could well believe that the union would represent them in all matters of prison discipline. Regret is expressed that the union constitution does not provide “for the kind of participation by everyone” that would have been liked, since the prison authorities had stated they would not permit union meetings, a prohibition which, in the So*1250ciety’s opinion, “is contrary to your rights under the United States Constitution”! The letter concluded on “one final note.” This was that “the recognition of your union and the successful conclusion of negotiations can be accomplished smoothly and expeditiously, with a minimum of dislocation, provided the administration is willing to proceed in good faith. However, should the administration create unnecessary obstacles, the process can be a long and arduous one.”
Plainly this letter, with its wholly unjustified imputation that refusal of immediate recognition by the prison authorities would not be “in good faith”— a serious charge for an organization with the prestige of The Legal Aid Society to put in the hands of hundreds of inmates in a maximum security prison —would have entitled the prison authorities to answer. Indeed, it very likely would have demanded this in the interest of proper administration of the prison. At least, despite the contrary supposition of the concurring opinion, this was what the prison officials thought; the affidavit of an Assistant Attorney General stated that:
If the subject material were distributed among the inmate addressees, the Administration would be obliged to notice [sic] those inmates that no “union” would be permitted at Green Haven and that, in its opinion, no “union” had been formed. In the opinion of the Acting Superintendent, open hostilities between the inmates and staff and between pro and anti-union inmates would likely ensue.
I am unable to perceive how, on such facts, a United States district judge can properly substitute his judgment for that of the state officer who is familiar with conditions at Green Haven and, unlike the judge in his quiet chambers, will have to handle trouble if this should occur.3
I am unable to follow the suggestion in the concurring opinion that “the extent of permissible judicial review of [state] correction officials’ action would seem to be no different from the extent of permissible review of the actions” of various federal agencies provided by federal statutes. Most importantly, it ignores the basic principle of federalism —that whereas Congress can freely decide how far federal courts should be allowed to invalidate federal administrative action, including “the effect of a proposed dam on fish life,” a federal judge does not have and could not constitutionally be given a roving commission to invalidate acts of state officers 4 *1251but is limited to determining their conformity with the Federal Constitution, laws and treaties. Beyond that, it was precisely the penchant of some federal judges for substituting their judgment for that of duly constituted administrators that led Congress to enact the substantial evidence rule. If we were reviewing the Acting Superintendent’s action simply on the bases set forth in the Administrative Procedure Act rather than on an assumed absolute arising from the Constitution, it would be apparent that the district judge, in the Supreme Court’s phrase, had “indulged in an unwarranted incursion into the administrative domain.” SEC v. New England Electric System, 390 U.S. 207, 211, 88 S.Ct. 916, 920, 19 L.Ed.2d 1042 (1968). Although the task of line-drawing inevitably remains, federal judges should keep in the forefront of their minds, when passing on the acts of government officials, that they have not been vested with executive or legislative power rather than rush to impose their supposedly superior knowledge, on all sorts of questions, upon the duly appointed officials who have lived with the problems and have been given responsibility to deal with them. Failure to observe such self-limitation will ultimately have most serious consequences.
This case is a classic example of what I have called “the domino method of constitutional adjudication . . ,, wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.”5 As the majority rightly say, although convicted felons do not enjoy the fully panoply of constitutional rights, they are not totally deprived of these, including First and Sixth Amendment rights selectively incorporated in the Fourteenth. While the Sixth Amendment would have no application here since it is limited to the assistance of counsel in criminal prosecutions, I have no difficulty with the proposition that the First Amendment as made applicable to New York by the Fourteenth or, for that matter, the Fourteenth without benefit of the First, requires a state also to allow, under proper safeguards, communications between a prisoner and his lawyer with respect to his personal affairs or alleged prison abuses. But this proposition does not entail either that the state must allow an organization like The Legal Aid Society to become an organizer for a prisoners’ union or that 980 prisoners, by signing authorization cards, have established a client-lawyer relation with it. Still less does it entail that the “lawyer” must be allowed to flood the prison with provocative, largely unnecessary and probably unwanted self-styled “advice” which the prison authorities reasonably consider to create a likelihood of disorder.
In view of the tolerant attitude the State officials had already exhibited, it is not at all unlikely that they might have allowed the circulation of a letter informing the inmates that the Society had requested recognition of the union, that it anticipated rejection, and that in that event it intended to pursue such remedies as state law afforded — all the legal advice the inmates needed or could profit from. This is another instance where civil rights lawyers have preferred to make a “federal case” than to try to resolve a matter by discussion. Cf. Negron v. Wallace, 436 F.2d 1139 (2 Cir.), cert. denied, 402 U.S. 998, 91 S.Ct. 2184, 29 L.Ed.2d 164 (1971). So far as the record discloses, the possibility of attempting to get permission to *1252send a letter like that here outlined was the last thing considered by The Legal Aid Society’s eager attorneys, although it would have been the first that would have occurred to any lawyer interested in quickly accomplishing a constructive result. In the absence of any such effort by the Society, the judge might well have applied his talents to endeavoring to work out some solution before utilizing his awesome power to strike down state action.6
I, of course, agree with so much of the majority opinion as sets aside the district court’s acceding to the request of the Society to utilize the Civil Rights Act to enforce state regulations affording rights to prisoners beyond those accorded by the Federal Constitution, with the attendant consequence of federal contempt proceedings against state officers for mere violations of state law.
. Counsel insists that the long letter, on the prestigious letterhead of THE LEGAL AID SOCIETY, PRISONER’S RIGHTS PROJECT, to which were attached copies of a letter to state officials demanding recognition, the union’s constitution, a press release of the New York Urban Coalition announcing support for the prisoners’ union, and a statement of support from a Congressman, constituted mere legal advice rather than soliciting material. A trained lawyer could indeed read the Society’s letter only in that way, although it is hard to see how the press release and the Congressman’s statement would fall under that description on any view. In any event, it requires considerable naiveté to suppose that the authors of this long letter expected that all the 980 prisoners who were to receive the bundle would read it as mere legal advice or would refrain from using it to gain adherents to the union, particularly in light of the “positive tone” of the letter conceded by the majority, of which more hereafter. Furthermore, the uncon-tradicted affidavit of Assistant Attorney General Gordon avers that attorneys of the Society liad earlier engaged in solicitation.
. The Act represented a compromise whereby organizational rights were granted state employees as a quid pro quo for prohibition of the right to strike. It goes without saying that prisoners have no such right. Cf. Draper v. Rhay, 315 F.2d 193 (9 Cir.), cert. denied, 375 U.S. 915, 84 S.Ct. 214, 11 L.Ed.2d 153 (1963); Wilson v. Kelley, 294 F.Supp. 1005 (N. D.Ga.), aff’d, 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425 (1968).
. The Legal Aid Society makes some point of the State’s failure to submit an affidavit by the Acting Superintendent or to demand an evidentiary hearing. While such a course would have been preferable, the State could have assumed that, after our admonitions in SEC v. Frank, 388 F.2d 486 (2 Cir. 1968), the district court would not simply brush aside the Acting Superintendent’s views, on a matter of public importance, without giving him an opportunity to substantiate them. I might add that I see no reason why this and many other applications under the Civil Rights Act are often handled on a basis that gives the State no adequate opportunity to respond. The application for a temporary injunction was brought on by order to show cause on February 22, five days after the Legal Aid Society was informed that the Commissioner would not deliver the letters. The State was initially allowed only four days (including a weekend) to answer, after the two days allowed the Society to perform the simple act of serving the papers a few blocks away. Since appellants were actually served with the show cause order on February 23, and the district court at the hearing on February 29 extended their time to answer until March 2, appellants in fact had seven days to answer; the point, nevertheless, retains its force. If ever there was a letter where speed of receipt was unimportant, this was it. As usual, such haste is counter-productive; the letter has now been held up for some four months.
. The states, of course, have the same power to provide for general judicial review of acts of their officers as the United States has with respect to its own, and New York has been a leader in affording this. The acts of the prison officials here challenged could have been attacked, on much broader grounds, under CPLR §§ 7801 and 7803. This is not meant to *1251suggest that exhaustion of state judicial remedies is now held to be required, see Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), and Rodriquez v. McGinnis, 456 F.2d 79 (2 Cir. 1972) (en banc), although the instant case illustrates how advantageous such a requirement would be in prisoner actions, but rather to make clear that if substitution of judicial for administrative judgment is desired in the state area, the substitution should be of state rather than federal judges.
. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 950 (1965), reprinted in Benchmarks 235, 258 (1967).
. I fail to comprehend the bearing of The Legal Aid Society’s efforts at Attica and elsewhere, except perhaps in emphasizing that since the State and the Society will be living together for a long time, the Society would have done better to avoid this confrontation until it had explored the possibility of an agreed solution, such as outlined above.