The opinion of the court was delivered by: GASCH
This matter came on for consideration of plaintiffs' motion for a preliminary injunction and the defendants' motion for summary judgment. Plaintiffs originally filed their complaint on January 12, 1973, seeking judicial review of the administrative action of the defendant members of the United States Board of Parole in denying permission to plaintiffs to travel to Hanoi, North Vietnam; a declaratory judgment that the defendants have interfered with plaintiffs' constitutional rights by refusing such permission; injunctive relief restraining the defendants from interfering with the proposed trip to Hanoi and future travel plans wherein plaintiffs desire to exercise their First Amendment rights; and a mandatory order compelling the defendant Board of Parole to permit the plaintiffs to make the trip to Hanoi "and any other travel of a similar nature."
On the same day they filed their complaint, the plaintiffs moved this Court to enter a temporary restraining order directing that the defendants approve plaintiffs' request to go to Hanoi for the period January 18 to January 28, 1973, plus necessary time to return. Since the power to grant immediate equitable relief, especially in the form of a mandatory order, should be "sparingly exercised,"
the motion for a temporary restraining order required this Court to consider carefully four factors before deciding whether to grant the extraordinary relief requested: (1) Has the petitioner made a strong showing of a substantial likelihood of success on the merits; (2) Has the petitioner shown that without such relief he will be irreparably injured; (3) Would the issuance of a stay substantially harm other parties interested in the proceedings; (4) Where lies the public interest.
Being guided by these criteria, and after considering the record of the case and the oral argument of counsel, this Court denied the motion for a temporary restraining order because plaintiffs' showing was less than the "persuasive demonstration"
required to invoke the Court's equity powers.
On January 17, 1973, the United States Court of Appeals for the District of Columbia Circuit summarily reversed this Court's order denying the motion for a temporary restraining order.
On the same day, the Solicitor General presented to the Chief Justice an application for a stay of the order of the Court of Appeals pending a hearing before this Court on plaintiffs' motion for a preliminary injunction. The Chief Justice granted the request for a stay "pending reference of the matter to the full court." On January 22, 1973, the Supreme Court ruled that "[the] application for stay, presented to the Chief Justice and by him referred to the Court, is granted."
During a hearing held on January 26, 1973, in this Court, at which Philip Berrigan testified on his own behalf, counsel for the government suggested that the transcript of the testimony be submitted to the Board of Parole for such further consideration it might wish to give to plaintiffs' travel request in light of the Vietnam cease-fire agreement executed on January 27, 1973, and any other facts and circumstances that may not have been previously brought to the Board's attention. Since plaintiffs' counsel had disclosed that the invitation to travel to North Vietnam was a "continuing invitation,"
a referral of this matter to the Board for further evaluation could not be viewed as aggravating the immediate and irreparable injury originally alleged to have been suffered by the plaintiffs.
Thus, in the interests of having an adequate record to facilitate proper judicial review of the issues involved herein, this Court referred the transcript of Philip Berrigan's testimony to the Board of Parole. In compliance with this Court's order, the Board reconsidered this entire matter in an en banc session held February 2, 1973, and unanimously denied the plaintiffs' application for permission to travel at the present time to Hanoi, North Vietnam. The case is now ripe for consideration of plaintiffs' motion for a preliminary injunction and defendants' motion for summary judgment.
The record reveals that the plaintiff Daniel Berrigan was released on parole on February 24, 1972, and that plaintiff Philip Berrigan was paroled on December 20, 1972. Both plaintiffs are presently under parole supervision conditions which include, inter alia, a requirement that they obtain prior permission from their probation officers for any proposed travel abroad.
In addition to the conditions of parole, the Department of Justice has promulgated certain regulations which require Board of Parole approval for trips by parolees outside the continental limits of the United States.
Although the plaintiffs' ability to travel was limited by the conditions of parole and the Department of Justice regulations, the Board has granted them numerous requests to travel for engagements and meetings at various locations within the United States. Moreover, in May and October of 1972, the Board granted permission for Daniel Berrigan to travel to Cannes, France; Paris, France; Stockholm, Sweden; London, England; and Tokyo, Japan. During January, 1973, the Board granted permission for Daniel Berrigan to travel to Paris, France; London, England; and Dublin, Ireland.
On January 7, 1973, the plaintiffs received an invitation to visit North Vietnam and the following day they sought Board approval for the proposed trip. The Board's denial of this travel request precipitated this litigation which has already run the gamut of the judicial process. The record is now complete for disposition of the two principal issues in the case: (1) whether the defendants' denial of permission to travel to North Vietnam was an unconstitutional infringement on plaintiffs' First Amendment rights, and (2) whether the defendants' disapproval of plaintiffs' travel request was an arbitrary denial of substantive due process. A proper resolution of these questions requires a clear understanding of the purposes of the parole system, the statutory duties of the United States Board of Parole, and the unique status of a parolee.
The parole system is an administrative structure through which persons may be released from imprisonment and allowed to serve the remainder of their sentences in their communities under the supervision of the paroling authorities. The existence of parole is the result of a legislative determination that the goals of rehabilitation and reintegration into society can be better achieved by reintroducing the offender to liberty through a transitional period of controlled release rather than requiring the individual to serve his entire sentence in prison and then abruptly restoring him to total freedom. To accomplish the purposes of rehabilitation and reintegration and to protect the citizenry against conduct detrimental to the public interest, many conditions and limitations are imposed on the parolee. Compliance with these conditions is ensured by the supervision of the parole officers and the possibility of parole revocation and imprisonment if the conditions are violated.
In general, the terms and conditions typically require the parolee to avoid contact with known criminals, to remain in the locality and employment to which he was released, to report to his parole officer on a regular basis and to obtain the prior approval of the paroling authorities for traveling outside the community. See Morrissey v. Brewer, 408 U.S. 471, 478, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Although the specific rules and conditions vary in each jurisdiction, it is generally accepted that the parolee's freedom is much more circumscribed than the average citizen who is not serving a sentence for a criminal offense. Perhaps the most accurate summary of the status of a parolee and his relationship to the Parole Board is contained in Hyser v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225, cert. denied sub nom., Thompson v. United States Board of Parole, 375 U.S. 957, 84 S. Ct. 446, 11 L. Ed. 2d 315 (1963), where the then District of Columbia Circuit Judge Warren Burger stated:
The relationship of the parolee and the Board beginning with this period of conditional release may be described as the supervisory or regulatory period. During the period of parole, the prisoner on conditional liberty is subject to the supervision of the Board acting through a federal parole officer.
From our review of the nature and purposes of parole it can be seen that appellants are neither totally free men who are being proceeded against by the government for commission of a crime, nor are they prisoners being disciplined within the walls of a federal penitentiary. They stand somewhere between these two. A paroled prisoner can hardly be regarded as a 'free' man; he has already lost his freedom by due process of law and, while paroled, he is still a convicted prisoner whose tentatively assumed progress towards rehabilitation is in a sense being 'field tested.' Thus it is hardly helpful to compare his rights in that posture with his rights before he was duly convicted.
The Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives as soon as in the Board's judgment that transition can be safely made. This is plainly what Congress intends. Thus there is a genuine identity of interest if not purpose in the prisoner's desire to be released and the Board's policy to grant release as soon as possible. Here there is not the attitude of adverse, conflicting objectives as between the parolee and the Board inherent between prosecution and defense in a criminal case. Here we do not have pursuer and quarry but a relationship partaking of parens patriae. In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for misuse of the privilege. 'Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders.' Williams v. People of State of New York, 337 U.S.  at 249, 69 S. Ct.  at 1084. [ 93 L. Ed. 1337]
Hyser v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225, 235, 237 (1963).
Originally, release on parole was viewed as an act of grace by the State,
however, as announced in Hyser v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225, 235 (1963), and recently reiterated in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), parole is best characterized as a custodial or regulatory period of "conditional liberty properly dependent on observance of special parole restrictions."
In order to perform their supervisory duties, parole boards have uniformly received statutory grants of broad discretion in setting and enforcing the terms and conditions of parole. The federal statute is a typical example of the broad discretionary power entrusted to paroling authorities:
Such parolee shall be allowed in the discretion of the Board, to return to his home, or to go elsewhere, upon such terms and conditions, including personal reports from such ...