Seattle-tacoma Newspaper Guild, Local #82, of Americannewspaper Guild et al., Plaintiffs-appellants,george Sing Louie et al., Plaintiffs-intervenors, v. Jacob J. Parker, Warden, et al., Defendants-appellees, 480 F.2d 1062 (9th Cir. 1973)

This appeal presents essentially one question: Does the First Amendment compel the warden of a federal penitentiary to permit individual press interviews with prison inmates by representatives of the news media? Two aspects of the First Amendment are involved. Is the warden in violation of (1) the First Amendment rights of his prisoners or (2) the First Amendment right of press access to the news, when he prohibits press interviews with willing prisoners?

Suit was brought by the Guild (onehalf of whose members are newspaper reporters) and two individuals, one of them a free-lance writer. Their complaint sought temporary and permanent injunctions enjoining the appellees from denying the plaintiffs

(a) The right to access to McNeil Island Federal Penitentiary,

(b) The right to interview prisoners and strike leaders,

(c) The right to take still and moving pictures inside the prison,

(d) The right to interview McNeil officials and employees, and

(e) The right of access to records and administrative directives at McNeil regarding prisoner treatment and prison life conditions.

There had been disruptions in the nature of a prisoner strike at McNeil in 1971 and emergency measures were taken by prison officials to restore order and to prevent recurrences. Members of the Guild sought to interview strike leaders among the more than 1,200 McNeil prisoners and to take statements from prison officials. Some Guild members went to the island by government vessel, accompanied by photographers. They met with Warden Parker, Daggett's predecessor, and he refused permission for photographs, interviews with others or free access to prison records.

Until the disruptive strike, the policy of the prison had been to provide access to relatives, friends, attorneys, news media, social workers, interested citizens, members of charitable organizations and other visitors, usually at scheduled times. The policy was curtailed during the strike because many prisoners refused to report for regular duties and destroyed government property. Contemporaneously, a group of protestors gathered and demonstrated at the Government pier on the mainland, the terminus for the vessel which transported personnel and supplies to the island. These circumstances caused a deployment of prison forces to preserve order, protect government property and prevent bodily harm.

Intervenors are McNeil prisoners who joined in the suit on their own behalf and on behalf of others similarly situated. They, too, sought injunctive relief from the prison policy of prohibiting press interviews. They claimed the policy violated their First Amendment rights of free speech, free press and the right to petition for redress of grievances.

While the suit was pending, the Bureau of Prisons reviewed its policies concerning access to prisons by press personnel. In February 1972, it issued a revised Policy Statement which defined news media,¹  recognized the right of inmates to have access to the media by correspondence,²  and provided for other confidential correspondence from inmates.³ 

The Policy Statement further provided encouragement to press representatives to visit institutions for the purpose of reporting on facilities and programs⁴  but with some limitations. Specifically, press interviews with individual inmates were prohibited.⁵  It is this prohibition that is now challenged by both the press and the inmates.

Experience in other institutions, said the Bureau of Prisons, led it to conclude that inmate interviews would adversely affect prison discipline and administration.

The Bureau found that interviews had two separate damaging consequences: (1) disciplinary problems increased, following interviews with disruptive or non-cooperative prisoners, who encouraged others to adopt their hostile approach, and (2) prisoners interviewed because celebrities or "big wheels," less subject to constructive rehabilitation. The Bureau believes that all prisoners should receive equal treatment, except for individual physical, mental and moral needs. Defendant Carlson, Bureau Director, supplied the district court with an affidavit on this subject.⁶ 

In his oral decision, the district judge noted that McNeil is a "maximum security" institution, designated for detention of selected prisoners. Its officials face serious disciplinary and security problems because McNeil has few first offenders and many recidivists with multiple convictions of crimes of violence. Finding that the rule against inmate interviews "is calculated to avoid a disruptive influence in the internal operation" of a federal prison, the court concluded that the Bureau regulation is not unconstitutional or oppressive but is "reasonable and is designed to give the administration of the institution some flexibility to adequately meet their responsibilities."

All parties having moved for summary judgment, the district court granted the motion of appellees and dismissed the action.

THE INMATES

It is axiomatic that prison inmates retain constitutional rights, and that "a prisoner does not shed his first amendment rights at the prison portals." Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971). However, it is equally clear that ". . . [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948).

As another Court of Appeals has pointed out:

"Imprisoned felons and inmates of such institutions * * * cannot enjoy many of the liberties, the rights and the privileges of free men. They cannot go abroad or mount the housetops to speak. They are subjected to rigid physical limitations and to disciplinary controls which would find no shred of justification in any other context. Even the disciplinary powers of military authorities are not so absolute." McCloskey v. Maryland, 337 F.2d 72, 74 (4th Cir. 1964).⁷ 

The Director of the Bureau of Prisons and the Warden at McNeil Island are responsible for the security of the prison and the safety and rehabilitation of its inmates, and accordingly they must be given wide discretion in formulating rules to govern prison life. In the instant case the Bureau of Prisons has given considerable study to the disruptive effects of prisoner interviews on prison administration, and has concluded that the ban on interviews is necessary to maintain the discipline, custody and control of the prison. We are unable to say that that conclusion "lacks support in any rational and constitutionally acceptable concept of a prison system." Sostre v. McGinnis, 442 F.2d 172, 199 (2d Cir. 1971) (en banc). We find that the interview ban is reasonable action within the scope of the wide discretion of the prison administrators and that it does not violate the prisoners' First Amendment rights. Smith v. Schneckloth, 414 F.2d 680 (9th Cir. 1969).

In concluding that the institutional concerns override the interest of the individual inmate in talking face to face with a member of the news media, we note that such a deprivation will not allow any real complaint about the treatment of the inmate or the administration of the prison to go unredressed. Prisoners are allowed by Bureau regulation to confer freely with their counsel, to conduct unlimited confidential correspondence, to visit with relatives and friends, to counsel with clergymen of their faith, and most important, to have free access to the courts. This court, as others, gives prompt and careful attention to prisoner petitions⁸  alleging violations of civil rights⁹  and counsel is appointed to assist the prisoner in those cases where the need therefor is demonstrated.

THE PRESS

Federal prisons are public institutions, and their administration is a matter of concern to all citizens. Decisions recognizing "the paramount public interest in a free flow of information to the people concerning public officials, their servants,"¹⁰  are equally applicable in the realm of prison administration. The importance of the media in providing public information about the conduct of these institutions is undisputed. Indeed, it has often been through the zealous efforts of the news media that failures in a particular institution have been exposed.

We are acutely aware of the public's need for information in this area. However, we do not accept the argument that the public interest in having its prisons secure and free from disruptive influences and in the rehabilitation of prisoners is insufficient to outweigh the uncertain burden on news reporting that allegedly results from prohibiting prisoner interviews.

We have already noted that the regulation in question is rationally related to the achievement of legitimate goals of prison administration. Appellant Newspapers Guild argues that despite the wide discretion allowed administrators in the formulation of rules and regulations governing prisons, there is nonetheless an absolute right to gather news, citing Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972):

"We do not question the significance of free speech, press or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." At 681, 92 S. Ct. at 2656.

However, ". . . [t]he 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 (1965), and accordingly the issue we must decide is whether the interview ban unduly restricts the flow of information to the public. In concluding that it does not¹¹  we again call attention to the Bureau's regulations giving news media extensive access to prison facilities and personnel, as well as the right to unlimited confidential correspondence with inmates. We are convinced that any hampering of the ability of the media to report occasioned by the interview ban is more than justified by the persuasive reasons given for its formulation.

It should be noted, however, that in this suit the interview ban dictated by the regulation is being attacked only insofar as it is applied at McNeil Island Penitentiary, a maximum security institution. Our holding today does not concern the application of the regulation to the wide variety of other institutions employed in the incarceration and rehabilitation of federal offenders.

The order of the district court granting summary judgment is affirmed.

KOELSCH, Circuit Judge (concurring specially).

As I read the record, the court below dismissed the actions on Rule 12(b) (6) grounds and did not, as the majority opinion seems to suggest, resort to nor pass upon the parties' respective Rule 56 motions for summary judgment.

Had it been necessary for the court to consider the latter motions, then we should reverse, for plaintiffs tendered a number of counter-affidavits setting out facts purporting to support their allegations that the questioned provision of the revised "Policy Statement" of February 11, 1972, violated, and were being applied in a manner that violated, their First Amendment rights. However, upon inspection of those provisions, the conclusion is manifest to me that none of them have, or could have, such an effect. The provisions are narrowly drawn and prohibit specific conduct that would, at least arguably, infringe upon a substantial federal interest in protecting the federal penal system. In short, I am firmly convinced that plaintiffs neither stated, nor could they state, any actionable claim or claims, and that we need not, indeed should not, suggest otherwise.

I concur in the result.