I dissent separately—and very briefly—because I approach the problem from a slightly different angle than does Justice Richardson’s dissent.
I might mention at the outset that the practical effect of the majority decision is likely to be nil. There is obviously enough leeway in the court’s criteria —threat to the security of the institution and proper penological purposes—to enable a sophisticated prison administration to regulate the content of a prison newspaper pretty much as it wants, provided it is done in slightly less ham-handed1 fashion than heretofore.
That problem aside, it seems to me that the majority starts from an erroneous premise: That in permitting a “newspaper” to be published the current Department of Correction’s regulations create a “forum for the expression of ideas.” Once that proposition is accepted, the balance of the court’s opinion follows along well-established First Amendment paths from which I would be the last to stray.
I believe, however, that the premise is wrong. A look at the department’s administrative manual convinces me that the current regulations do not intend that “prison newspapers” serve the lofty purpose assumed by the majority.2 Herewith a fair summary of the currently applicable regulations: Inmates may participate in the publishing and distributing of “some form of newspaper” or *929“house organ” (§ 720, subd. (a)), which shall be edited and printed “aspart of the educational and vocational training programs ...”(§ 720, subd. (c)). (My italics.) A civilian instructor is to supervise the preparation and publishing of the paper and that particular employee “will participate in the planning of each issue.” (§ 720, subd. (d).) The content of the paper “is the responsibility of the designated supervising employee” who has full authority to select, edit or reject submissions, (§ 720 subd. (e).) The primary purpose of the publication is its “educational and training value for participating inmates.” (§721, subd. (a).) It may also be used for the dissemination of information from the administration and of happenings within the institution. (§721, subds. (b), (c).) In fact, the publication “shall not be designed to cover events and issues outside of the institution . . . .” (§ 721, subd. (d).) Then, after a section dealing with circulation, come the provisions relating to “standards” (§ 723)—the main target of plaintiffs attack in this proceeding.3
I readily concede that these standards would be outrageous were they imposed to restrict the rights of a hypothetical private newspaper publisher. I further concede that even if one subtracts from those rights the restrictions permitted by section 2600 of the Penal Code, these standards are overbroad. My point is, rather, that the hypothetical newspaper issued by our hypothetical publisher is genetically different from the type of publication which the administrative manual has in mind. What the majority has done, in effect, is to tell defendants first, what type of publication they ought to permit and, second, that they are not doing it right.
The majority’s concept of the type of paper which defendants are to allow presumably conforms to some platonic ideal of a newspaper the very contemplation of which evokes First Amendment magic—Peter Zenger, Near v. Minnesota, New York Times v. Sullivan, The Pentagon Papers case, Nebraska Press Association v. Stewart, and so on. If defendants purported to authorize publication of that kind of a newspaper, the First Amendment consequences which the majority visits on them would, of course, be justified.
*930The point is, however, that the current regulations do no such thing. They permit a house organ, as part of the inmates’ educational and vocational training program, run under the supervision of a civilian instructor with full authority to select, edit and reject submissions. They specifically provide that the paper is not to cover events outside the institution, but can only disseminate intrainstitutional news. In other words, they permit an intramural, educational training exercise, designed primarily to aid in the inmates’ rehabilitation—a pedagogical effort to which the First Amendment is as relevant as the Clayton Act to a game of Monopoly.
Two analogies may clarify my point. First: suppose that as part of a prison course in writing the instructor had asked the students to write an essay on “Why My Trial Counsel Was Incompetent.” Suppose further that an inmate refused to write on that subject, but handed in an essay on “The Concept of Peace in Early Celtic Literature. ” Would anyone doubt that the instructor could take appropriate action to try and make the student conform to the demands of the course? The student’s mission was to write within the confines of a theme prescribed by the instructor and he failed to do so. Surely he cannot appeal to “free speech” or cry “censorship” to avoid a failing grade. To me the prison paper is no different: its mission is to educate, to rehabilitate and to inform within clearly designated limitations. It is not intended as a “forum for the expression of ideas.”
Second: try a variation on the theme of Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536 [171 P.2d 885]. Suppose the school in question had made its auditorium available for the limited purpose of holding a debate tournament. Can it be doubted that it could constitutionally condition the license on the contestants’ being required to stick to the resolutions being debated and getting the hook if they wander all over the lot to express their political views to a captive audience?
Admittedly neither of these two analogies is perfect. The reason, I suspect, is that the type of prison newspaper permitted by the department is sui generis and simply will not fit into the standard First Amendment mold.
I also admit the obvious: reasonable persons can differ on the threshold question whether the paper is established as an educational-rehabilitative exercise or as a marketplace for ideas. I would respectfully urge that in straining to find the latter to be the case, the majority is not likely to further First Amendment values. It is recognized that the department is under no compulsion to permit the publication of newspapers within our prisons. It has, however, made a stab in that direction but, for its pains, has been subjected to a rolling barrage of First Amendment artillery. If the department can live with the guidelines pro*931mulgated in this opinion—as I have suggested at the outset it can—no harm will be done. On the other hand, if it finds the guidelines intolerable, it will simply have to discontinue a worthwhile educational and vocational training program.
E.g.: “No material will be published which could . . . subject the institution, as publisher, to public censure or disrepute.” (Dept. of Corrections, Admin. Man., § 723, subd. (a).)
Although—as the majority suggest—the current regulations “resemble” the regulations which were in effect at the time of trial, there are a number of potentially significant differences. First, while the former regulations provided that “ [institutions may publish a newspaper, magazine or newsletter as specifically authorized by the warden or superintendent” (former § 720, subd. (a)), the current section provides that “[Institutions may publish some form of newspaper or ‘house organ, ’ with the specific authorization of the warden or superintendent. ” (Italics added.) (§ 720, subd. (a).) Second, unlike the prior regulations, the current provisions state that “[¡Institution publications shall not be designed to cover events and issues outside of the institution and department, except for items directly related to departmental operations.” (§ 721, subd. (d).) Third, whereas the former regulation stipulated that publications were to be financed from inmate welfare funds (former § 722, subd. (a)), the current section provides that publications shall be financed out of the general operating expenses of the institution. (§ 722, subd. (a).) Finally, the current provision on publication standards (§ 723, quoted at fn. 3, post) appears to place greater limits on publications than those imposed by former sections 723 and 724 (quoted by the majority at p. 912, fn, 3, ante).
In my view, the current regulations, rather than the regulations that were in effect at the time of trial, provide the appropriate basis for review. As this court explained in an analogous situation in Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, footnote 6 [138 Cal.Rptr. 53, 562 P.2d 1302]: “Under settled principles, the version of the [regulation] in force at present is the relevant legislation for purposes of this appeal.”
Section 723 currently provides: “Standards. (a) Publications should be written, illustrated and published in accord with good journalistic standards. No material will be published which could threaten prison security and order or interfere with program objectives or subject the institution, as publisher, to public censure or disrepute, [t] (b) Institution publications will be expected to adhere to the highest standards of accuracy and objectivity. Reports and articles will not make attacks on any individual, serve as a vehicle for grievances or complaints or as a substitute for the departmental appeal process, or promote personal opinions. [1] (c) No advertising material of a commercial nature shall be printed. [1] (d) Material offensive to any race, nationality, religious faith or similar group will not be published, [1] (e) No obscene, lewd, pornographic, suggestive, libelous or defamatory matter shall be published. [1] (f) Institutional publications shall not take positions on matters pending before the Legislature, nor urge the support or defeat of any public official.”