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WASHINGTON POST CO. v. KLEINDIENST

April 5, 1972

The WASHINGTON POST CO. and Ben H. Bagdikian, Plaintiffs,
v.
Richard G. KLEINDIENST, Acting Attorney General of the United States and Norman A. Carlson, Director, United States Bureau of Prisons, Defendants


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

Gesell, District Judge.

 This complaint seeks injunctive and declaratory relief. Plaintiffs, a newspaper and one of its experienced reporters, sought permission to interview certain prisoners at two federal penitentiaries: Lewisburg and Danbury. Defendant Carlson denied this request, relying on the Bureau of Prisons' Policy Statement of February 11, 1972, which flatly prohibits any interviews of prisoners subject to control of the Bureau, regardless of the reason for the request or the prisoner's status or offense. *fn1" Plaintiffs claim that this flat prohibition of the policy contravenes the First Amendment. They emphasize their desire to interview only prisoners willing to be interviewed and they recognize reasonable restraints as to time and place may be imposed so long as such interviews are not censored or overheard by prison officials. Restrictions upon interviews during periods of prison emergency are not questioned in this litigation.

 Plaintiffs have a legitimate news interest. The Washington Post has run a comprehensive series on prison conditions, illustrated by articles attached to the complaint. The unsuccessful effort to interview which led to this litigation related to matter of obvious public interest. Recent work stoppages at Lewisburg and Danbury had apparently been satisfactorily resolved without bloodshed through negotiations between the Wardens and inmate representatives. Information subsequently came to the Washington Post that inmate ringleaders had been punished and that this was contrary to assurances given by prison authorities. The newspaper had reason to believe that some members of the inmate negotiating committees may have been placed in solitary, maced, deprived of necessary medical care and otherwise harshly treated. This information came from lawyers for inmates and their relatives, from prisoner letters and also from scattered congressional sources. The newspaper was interested not only in publicizing these apparently peaceful settlements which contrasted with several recent violent prison outbreaks but was prepared to expose any brutality or unwarranted retaliatory discipline if intimations received proved well founded.

 Defendants contend that the press has no constitutional right of access to inmates for confidential interviews and urge that the same Bureau policy which permits contact between prisoners and the media both through uncensored mail and by casual conversations held in the course of prison tours *fn2" provides sufficient access and is not arbitrary.

 The Court denied a temporary restraining order immediately after the complaint was filed. Thereafter a hearing was promptly held on the prayer for preliminary injunction. Testimony was taken from several penal experts *fn3" and the parties have filed detailed briefs. With consent of the parties the matter was submitted to the Court for final decision on the merits following the hearing. *fn4"

 There are few decisions that have considered whether the First Amendment implicitly guarantees access to news sources under special conditions such as those here presented. *fn5" While the right to publish is firmly established, the Amendment's implications in terms of access are not resolved. There is, of course, an absolute right of privacy which the press cannot invade. An individual may refuse to be interviewed. Those who wish to consult or meet in private for the day-to-day conduct of public or business affairs may, in furtherance of their own common right to privacy, exclude the media. These commonly accepted situations are, however, obviously quite distinct from the special circumstances presented by this particular controversy. Here the Bureau has not denied the press access to its own personnel. Rather, it has imposed a bar on persons placed in its care by the courts who may wish to talk with the press and are willing to be interviewed.

 There is no law that deprives prisoners of their right to speech by communicating with the press. Indeed, the courts have repeatedly been at pains to point out that the fact of conviction does not automatically deprive prisoners of rights guaranteed under the Constitution. "[A] prisoner does not shed his First Amendment rights at the prison portals." Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971). Indeed, "A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law." Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887, 65 S. Ct. 1568, 89 L. Ed. 2001 (1945). While "[lawful] incarceration brings about the necessary withdrawal or limitation of many privileges and rights . . .," reasonable necessity, to be determined on a case-by-case basis, must dictate any official retraction of such rights. Price v. Johnston, 334 U.S. 266, 285-286, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948). The courts have repeatedly preserved First Amendment rights of prisoners to the free exercise of religion, Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); Brown v. Peyton, supra ; Barnett v. Rodgers, 133 U.S. App. D.C. 296, 410 F.2d 995 (1969); Long v. Parker, 390 F.2d 816 (3rd Cir. 1968); to receive mail, Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I. 1970); to receive newsletters, Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970); and, notably, to communicate with the press by uncensored mail concerning prison management, treatment of offenders, or personal grievances, Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971).

 The Bureau is not wholly unconscious of these considerations. It recognizes that the public has a legitimate and hopefully continuing interest in its affairs. It has not sought completely to black out the press. Federal penal institutions are open to reasonable press inspection and confidential mail communication between prisoners and the press is permitted. There is no evidence that the Bureau is attempting to conceal. In spite of the serious overcrowding and lack of adequate funds for personnel and essential programs, it is attempting to set a high standard of inmate care.

 In refusing to permit press interviews under any circumstances, the Bureau is prompted by considerations of administrative convenience and possible disciplinary or other difficulties which undue press attention to particular inmates may engender, affecting either the individual prisoner or his fellow inmates. The Washington Post insists that the in-depth individual inmate interviews are essential to adequate, fair reporting. It contends that the limited access afforded under the Bureau's policy is wholly inadequate. Communication by correspondence is said to be too impersonal and time-consuming. In order to write reliable stories, it is suggested, there is a need to observe demeanor, to probe by questioning and to overcome the barrier of semi-illiteracy and suspicion that may inhibit inmates when they write. Prison tours and related conversations with individuals or groups are characterized as too hit-and-miss, too limited, too casual, too unproductive to enable a reporter to probe a given situation.

 Since "[the] right to speak and publish does not carry with it the unrestrained right to gather information," Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 1281, 14 L. Ed. 2d 179 (1964), the issue here tendered is, nonetheless, whether the interview restraint imposed by the Bureau's policy is unduly restrictive. A continuing flat prohibition against press interviews of any prisoner, at any time, under any circumstances, in any institution, is on its face arbitrary. The burden of justification rests upon the defendants. Cf., Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). It is not a matter of the Court substituting its judgment for the Bureau's but rather whether, given the breadth of the prohibition, it appears after balancing the considerations pro and con that the justification offered is obviously deficient. In short, are the limitations placed on First Amendment freedoms no greater than is necessary to protect the governmental interests asserted? *fn6" As this inquiry is pursued there is no need to differentiate between the rights of the press and the rights of prisoners committed to the custody of the Bureau. News gathering and news dissemination cannot be disassociated under circumstances such as these where it is assumed there is a mutual desire to communicate and where, in the last analysis, the public right to be informed may well overshadow either of the other two considerations. DeJonge v. Oregon, supra, 299 U.S. at 364-365, 57 S. Ct. 255.

 Accordingly, it becomes necessary to examine the Bureau's justification for its absolute interview prohibition with care. Several considerations have prompted the Bureau's decision which was reached only after serious deliberation and study:

 (1) Excessive press attention to a relatively few notorious prisoners has detracted measurably from their rehabilitative treatment and imposed administrative difficulties.

 (2) When press interviews are held they receive immediate wide attention throughout the prisons and the importance of the prisoner interviewed is exaggerated among other inmates. Thus prisoners receiving wide press attention may become "big wheels" and have their status within the prison community enhanced to a point that seriously interferes with effective discipline. Seale v. Manson, 326 F. Supp. 1375 (D. Conn. 1971).

 (3) A few prisoners may use the medium of the press to foster revolt within the walls. All news that goes out comes back in by newspaper, television and radio. Angry words, false accusations and protest geared to violence can light a fuse that erupts the pent-up emotions of inmates who may feel neglected and abused.

 These are all real considerations and while somewhat impressionistic, they are supported by experience and advanced in good faith. The Court is satisfied, however, that the interview prohibition is too all-inclusive and that the factors mentioned do not justify a blanket denial of press access to all individual inmates willing to be interviewed. It is possible to prevent the difficulties and excesses feared by far less restrictive measures. Individual interviews may be refused where difficult administrative or disciplinary problems threaten and it goes too far to exclude all inmates from press access through individual interviews.

 The National Council on Crime and Delinquency in its proposed model act to provide minimum standards for protection of rights of prisoners would permit press access to individual prisoners for interview. Crime and Delinquency, Vol. 18, January 1972, p. 13. See also, An Introduction to Prison Reform Legislation Clearinghouse Review, Vol. V, No. 11, March 1972, p. 667. Press interviews are freely permitted throughout the New York City correctional system, by the District of Columbia Department of Corrections, and by several states. (Exhibits 1-8, inclusive). Many tensions are thus relieved. California, for example, long had rules permitting interviews but terminated them after a recent outbreak at one prison attributed in part to many inflammatory interviews permitted a single prisoner. However, its knowledgeable, experienced Director, were it not for questionable legal advice, would still permit interviews in many sectors of his statewide correctional system.

 Not only is there a difference in practice and viewpoint among correctional officials on the subject of press interviewing generally, but there is another overriding factor that calls into question the propriety of any blanket prohibition such as that presented in the Bureau's policy. The great bulk of federal prisoners, perhaps as many as ninety percent, are incarcerated for non-violent crimes. Many of these men and women in federal institutions have completed high school or its equivalent. Many are articulate and thoughtful.

 Yet even prisoners released into the community under various training, furlough and other policies placing the prisoner into unsupervised contact with non-prisoners, may still not be allowed to talk with the press. The policy applies not only to the six major penitentiaries but also to the entire far-flung complex of institutions, camps, community treatment centers, minimum security ...


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