Our task in this cause is to decide whether the Department of Corrections has sustained the burden placed on it by the California Supreme Court, namely, “to show cause . . . how its administrative guidelines governing prison newspapers conform to the standards set forth in Bailey v. Loggins (1982) 32 Cal.3d [907 (187 Cal.Rptr. 575, 654 P.2d 758)].” This decision is obviously a two step process: (1) what are the “standards” set forth in Bailey v. Loggins; and (2) has the Department of Corrections sustained its burden of proving that its regulations “conform” to those standards. In my view, my majority colleagues have misinterpreted the Bailey standards governing prison newspapers, and the Department of Corrections has not yet shown cause—i.e., presented evidence—to show how its regulations conform to the true standards of Bailey.
Accordingly, I dissent.
*613 The First Step
Bailey v. Loggins consists of five separate opinions: (1) a lead opinion authored by Justice Broussard concurred in by Justice Reynoso; (2) a separate concurring opinion by Justice Newman; (3) a separate concurring opinion by Chief Justice Bird; (4) a dissenting opinion by Justice Richardson concurred in by Justice Mosk; and (5) a dissenting opinion by Justice Kaus.
In the lead opinion, Justices Broussard and Reynoso posit that prisoners enjoy some measure of press freedom rights under both the United States and the California Constitutions. (Bailey v. Loggins, supra, 32 Cal.3d at pp. 917-920.) The extent of this protection is not coextensive with that accorded to private, noninstitutionalized publishers. Thus, the Department of Corrections may “censor [prison] newspapers in order to provide for the reasonable security of the institution and the reasonable protection of the public. ...” (Pen. Code, § 2600)1, may “exercise control over the content of the newspaper to serve valid penological objectives. . . .”, “can insist on standards of good journalism ...” and “can also insist that the newspaper report announcements and events of interest to its readers.” (Bailey v. Loggins, supra, at p. 920 and fn. 9.) Justices Broussard and Reynoso concluded that regulations concerning prison newspapers “must be framed and applied uniformly with due regard for constitutionally protected rights of free expression, and in accord with the standards of . . . Penal Code section 2600” and the traditional “less restrictive” means test for evaluating regulation of such rights. (Bailey v. Loggins, supra, at pp. 920-921 and fn. 10.)
The sole announced purpose of the Chief Justice’s concurring opinion was to emphasize that the Department of Corrections “may not reissue regulations substantially similar to those which have been presented to this court,” and that “the regulations issued hereafter must comport with the First Amendment principles applicable to state publications generally (except as provided by Pen. Code, § 2600).” (Bailey v. Loggins, supra, 32 Cal.3d at p. 923 (conc. opn. of Bird, C. J.).)
*614Thus at least three members of the court agree that the regulations governing prison newspapers “must comport with the First Amendment principles applicable to state publications generally (except as provided by Pen. Code, § 2600).” But the agreement of three justices of a seven-member tribunal is not sufficient to establish “standards.”
As I read the concurring opinion of Justice Newman, it supplies sufficient agreement with a portion of the language or the lead opinion (when read in conjunction with the concurring opinion of the Chief Justice) so that it can be said, with some assurance, that there are “standards set forth in Bailey v. Loggins. ” In other words, a majority of the court agrees on a rationale.
Justice Newman does not rely on the federal Constitution, but solely on the California Constitution, and in so doing agrees with the lead opinion to the extent that section 2 of article I of the California Constitution is applicable. (See Bailey v. Loggins, supra, at p. 923 (conc. opn. of Newman, J.).)2 Thus the “standards” of Bailey v. Loggins to the extent they are of constitutional origin, are limited to the California Constitution and only to section 2 of article I thereof.3
Justice Newman steps away from a portion of the lead opinion’s rationale. He does “not agree that Penal Code section 2600 permits any restraints or abridgements of speech, press, and petition rights that can be justified only by referring to ‘good’ journalistic standards or ‘valid’ penological objectives.” (Bailey v. Loggins, supra, at p. 923 (conc. opn. of Newman, J.).) Instead, in his view the Legislature in section 2600 has required that those standards and objectives which justify restraints or abridgements of speech, press and petition rights “be based on either security or public protection.” He reads the lead opinion as holding that “except when necessary to provide for reasonable security or reasonable public protection, the Department of Corrections no longer may concretize clauses like those of regulation 723 that are identified in footnote 10 of the opinion.” Only on the basis of such an interpretation of the holding of the lead opinion does he concur. (Ibid.)
When these three opinions representing the views of the four justices who comprised a majority of the court are distilled for the purpose of determining what rationale is shared,, it is, without doubt, that no restraints or abridgements of the free speech and free press rights enunciated in section *6152, article I of the California Constitution are allowed in a prison newspaper context except to the extent that the Department of Corrections can demonstrate that such restraint or abridgement is “necessary in order to provide for the reasonable security of the institution . . . and for the reasonable protection of the public.” (§ 2600.)
In other words, “the standards set forth in Bailey v. Loggins” are that administrative guidelines governing prison newspapers must comport: (1) with state constitutional principles applicable to state publications generally (i.e., Cal. Const., art. I, § 2) and (2) that no restraint or abridgement of such rights as measured in a nonprison context is allowed unless the restraint or abridgement is proved to be necessary for either the reasonable security of the institution or the reasonable protection of the public. (§ 2600.)
My majority colleagues, apparently relying on some of the language of Justice Broussard’s lead opinion, find that the state may censor prison newspapers so long as the censorship is necessary to achieve a “legitimate penological objective.” (Majority opn., ante, at p. 608.) Justice Newman, the fourth vote necessary to the judgment, explicitly rejects such a notion. For example he explains “. . . I do not agree that Penal Code section 2600 permits any restraints or abridgements of speech, press, and petition rights that can be justified only by referring to . . . ‘valid’ penological objectives. In my view the Legislature has required that those standards and objectives be based on either security or public protection.” (32 Cal.3d at p. 923.) Similarly the Chief Justice explains that she believes the lead opinion “makes clear” that “the regulations issued hereafter must comport with the First Amendment principles applicable to state publications generally (except as provided by Penal Code, § 2600).” Since neither such principles nor section 2600 allows restraints for penological objectives and neither Justice Newman nor Chief Justice Bird agree with the language relied upon by my majority colleagues the result is that such language is not part of the holding or of the “standards set forth” in Bailey v. Loggins.4
*616 The Second Step
The second step is to determine whether the Department of Corrections has sustained its burden in this proceeding of showing how its administrative regulations conform to these standards. So far, it has not.
There is at present no factual basis upon which this court can determine: (1) whether the regulations are in fact necessary for the reasonable security of the institution, or the reasonable protection of the public (§ 2600; see Bailey v. Loggins, supra, 32 Cal.3d at p. 920); or (2) if the regulations are necessary, whether there are less restrictive alternatives by which the regulatory object could be achieved. No evidence on either of these matters has been presented by the parties. In my view, until this is done, my majority colleagues are premature in their determination of the validity or invalidity of the regulations challenged here. Accordingly, instead of reaching the merits of the petition in this factual vacuum, I would appoint the superior court to sit as a referee and set the matter for an evidentiary hearing and then review the findings of the referee prior to ruling on the merits of the petition.
Petitioner’s application for a hearing by the Supreme Court was denied December 20, 1984. Reynoso, J., and Grodin, J., were of the opinion that the application should be granted.
Penal Code section 2600 provides in pertinent part that “[a] person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” As Justice Broussard in his lead opinion puts it: “Thus by statute California prisoners retain all rights encompassed under the heading of freedom of the press in the First Amendment to the United States Constitution and article I, section 2 of the California Constitution, except to the extent that such rights must be curtailed for institutional security and public safety.” (Bailey v. Loggins, supra, at p. 915.)
Unless otherwise indicated, all further statutory references are to the Penal Code.
Justice Newman also finds section 3 of article I applicable, but the majority makes no reference to that provision of the California Constitution. (See Bailey v. Loggins, supra, at p. 915; contrast, id., at p. 923 (conc. opn. of Newman, J.).)
Section 2 of article I of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
Justices Richardson, Mosk, and Kaus dissented in Bailey. Justice Richardson began his dissent from the premise that “inmates have neither a constitutional nor statutory right to publish their articles in such a newspaper." (Bailey v. Loggins, supra, 32 Cal.3d at p. 923 (dis. opn. of Richardson, J.).) He felt that “[g]iven the highly volatile and unpredictable environment existing behind prison walls, ... the scope of discretion vested in prison officials must include the right to edit or refuse to publish any articles which prison officials in the fair exercise of their professional judgment reasonably deem potentially disruptive, provocative or inflammatory. . . ." (Id., at p. 926, italics in original.) He and Justice Mosk therefore concluded that the Department of Corrections “acted properly both in vesting prison officials with ultimate control over the content of inmate’s articles, and in promulgating the regulations at issue.” (Id., at p. 924.) Justice Kaus also criticized the “majority” for “starting] from an erroneous premise,” namely, that the inmate publication implicated constitutional rights. (Id., at p. 928 (dis. opn. of Kaus, J.).) For him, “the type of prison newspaper permitted by the department is sui generis and simply will not fit into the standard *616First Amendment mold.” (Id., at p. 930, italics in original.)
It is apparent from this brief examination of the dissenting opinions that three justices refused to concede the validity of the initial point of analysis from which the majority proceeded. The consequence of this fundamental and irreconcilable divergence is that the dissenters never reached the merits of underlying issue of regulation decided by the majority. It is therefore futile, in my view, to consider the dissenting opinions to determine “the standards set forth in Bailey v. Loggins. ”