We’ll hear arguments in 73-754, Procunier against Hillery and 73-918, Pell against Procunier.
Mr. Murphy, you may proceed whenever you are ready.
John T. Murphy:
Mr. Chief Justice, may it please the Court.
This case is here on cross-appeals from a decision of a three-judge District Court for the Northern District of California.
And I’m representing Raymond Procunier, who is the Director of the California Department of Corrections and several of his subordinate officials who have been sued in this particular action.
Now, the facts are — are essentially these.
On August 21, 1971, Mr. Procunier based upon his knowledge of the California prison system and based on the sad experience of events concluded that he could no longer permit press and other media interviews with specific individual inmates, and he issued a — a regulation to this effect.
Now, a civil right suit was bought — was brought and the — the plaintiffs in this civil rights suits — suit were news media representatives and were also prisoners.
On November 1, 1972, the District Court single judge acting issued a temporary restraining order which enjoined the operation of Mr. Procunier’s regulation.
As a result of this injunction, interim procedures were adopted by the Department of Corrections and those interim receipt — procedures remain in effect at this time.
On August 16, 1973, the three-judge District Court issued its order in this particular case, the order which is before the Court.
The District Court found that the regulation unnecessarily restricted the First Amendment rights of the inmate plaintiffs in the action.
However, the District Court also concluded that the complaint brought by the media plaintiffs was properly dismissed on the grounds set forth in the motion of the defendants to dismiss the complaint.
Now, the point of Mr. Procunier’s appeal is this.
The California Department of Corrections has a — a real and demonstrated need for the regulation which has now been struck.
The absence of this particular regulation then and now is causing a hazard as far as the care and custody of inmates and the prison situation generally in California.
And furthermore, the decision of the Court as a president tends to undercut the ability of Mr. Procunier to operate his prison system as he thinks it should operated most effectively.
William O. Douglas:
Is it the entire regulation on page 2 of your brief?
John T. Murphy:
Yes, Your Honor.
That is California Department of Corrections Administrative Manual Section 415.071.
William O. Douglas:
Just that once sentence –?
John T. Murphy:
Yes, Your Honor.
Now, this regulation was generated by an emergency situation, namely the killing of three guards and the killing of three inmates and the wounding of others on August 21, 1971.
But aside from having been generated by this particular incident, it involves something more — more deep, it involves an underlying and persistent problem recognized earlier and still recognized today in the operation of the penal system.
So, we are not necessarily treating this as being an emergency regulation, but an important regulation which the Department of Corrections is urging that it could institute or reinstitute today.
William J. Brennan, Jr.:
Mr. Murphy, how is it now been suspended
John T. Murphy:
Since November 1, 1972, Your Honor, by reason of the temporary restraining order.
William J. Brennan, Jr.:
And there have been interviews over that period — since that time?
John T. Murphy:
Yes, Your Honor, pursuant to interim procedures.
William J. Brennan, Jr.:
And have — have there been any difficulties within the prisoners?
del
John T. Murphy:
This record would not indicate any specific situations since that period of time, since November 1st?
William J. Brennan, Jr.:
Does the record tell us what — is there any — anything in the record about the experience since that time?
John T. Murphy:
Yes.I could go outside the record.
I —
William J. Brennan, Jr.:
There is nothing in the record?
John T. Murphy:
No, there is nothing in the record, which would indicate what the experience has been of the Department since November 1, 1972.
Warren E. Burger:
What was the date of the three-judge Court to —
John T. Murphy:
August 21st — excuse me, August 16, 1973.
The case had been submitted in February of 1973 and was not decided until August of 1973.
Now, the problem as seen by Mr. Procunier and the other defendants in — in this particular action is what to do about the inmate who has, in the past, or the inmate who will in the future, use the press as a vehicle for promoting his own personal ambitions or leadership in disruptive forces within the prison.
This is what it has been characterized in — in various cases, not just this case, but in another cases, as the big wheel syndrome or the celebrity syndrome.
Now, courts that have looked at this judgment, this administrative judgment, this administrative consideration, have recognized it as a good faith advancement made by prison officials, yet there has been a tendency to put this aside, cast it aside very lightly.
However, it is a very important consideration and it’s a very real consideration, it’s is a very troublesome consideration and that’s why I think this case is here and why Mr. Procunier has brought this — this particular case.
Now, the impact of the press on — on individuals has not gone unnoted by this Court before.
In Estes versus Texas, this Court had the occasion to consider in-depth what the impact of one form of the media would be on witnesses, on jurors, on judges, and attorneys.
Not just in the court group — room setting, but also in their behavior patterns and if you could take that analysis from — from the Estes case and apply it to a prisoner setting, you would come up with — with this result.
When the press attention focuses on an individual inmate, this attracts interest in the prison community from staff and from inmate alike.
As the publicity increases, the status of the inmate within the prison increases accordingly.
It becomes more important.
With the increase in publicity comes increases in tensions.
Now, if the views, if what the inmate is trying to communicate arouses the hostility of others within the prison setting, you have considerable problems.
If that particular inmate is preaching a doctrine of noncooperation, a doctrine of disruption, then those consequences are going to become even more serious.
Thurgood Marshall:
But does this regulation also apply to an inmate who wants to preach Jesus Christ Superstar?
John T. Murphy:
I think it would be clear, Your Honor, that if an inmate were to preach within a prison and he were to preach —
Thurgood Marshall:
— preach into the press?
John T. Murphy:
Oh, preach into the press.
Thurgood Marshall:
Well, suppose he wants to preach in the words of a wonderful man, would that be all right?
But he’d be barred from doing it, wouldn’t he?
John T. Murphy:
He certainly would, Your Honor.
Thurgood Marshall:
It is not the harm and the whole thing, everything is barred.
del
John T. Murphy:
Your Honor, we would not advocate a one-sided regulation which would allow those inmates who have something favorable to say to the — to the press about the institution, to speak to the press and yet at the same time —
Thurgood Marshall:
So, you just stop it —
John T. Murphy:
— or bar — bar other inmates who —
Thurgood Marshall:
So, you just stop it all?
John T. Murphy:
— may have something unfavorable.
Thurgood Marshall:
So, you just stop it all?
John T. Murphy:
That’s is right, Your Honor — with alternatives — or whether the inmate is not denied access to the press as a general proposition.
What is the concern here is the press interview, the face-to-face interview.
There is other avenues available and are used and have been used in the past and are being used now for the inmate to communicate to the press.
He can communicate through the mail.
He can communicate through third persons.
Now the record here is very clear and is very substantial.
Thurgood Marshall:
What third persons does he communicate with the press?
John T. Murphy:
What type of —
Thurgood Marshall:
Third person.
John T. Murphy:
What third persons.
Your Honor, he would have the opportunity to talk to members of his family or other people who would be on his visitor’s list.
Thurgood Marshall:
Or his ministers.
John T. Murphy:
Yes, Your Honor.
They are on his visitor’s list.
Thurgood Marshall:
Good, but not the press?
John T. Murphy:
No, he has no right to demand —
Thurgood Marshall:
What makes the press bad people?
John T. Murphy:
The press are not bad people, Your Honor.
The record —
Thurgood Marshall:
Well, what would make the interviewing press may have been?
John T. Murphy:
Because, Your Honor, the problem that has caused on the inmate himself.
This is the situation where the inmate becomes a focus of attention within the prison setting.
Thurgood Marshall:
And aren’t you trying to rehabilitate it?
John T. Murphy:
Yes, Your Honor.
del
Thurgood Marshall:
Can you rehabilitate person without paying attention to it?
John T. Murphy:
No, Your Honor.
Thurgood Marshall:
And the more attention you pay — doesn’t that help him in rehabilitation?
John T. Murphy:
Not necessarily, Your Honor.
Potter Stewart:
(Voice Overlap)
John T. Murphy:
It would depend upon the type of attention that was —
Potter Stewart:
Well, it depends upon you and more attention you pay.
Whether it’s the press paying attention to him or whether the prison authorities or whether it’s his minister, his doctor, or whether some — (Voice Overlap) influence.
John T. Murphy:
Yes, Your Honor.
Thurgood Marshall:
But the only bad influence is the press.
John T. Murphy:
No, Your Honor, that’s —
Thurgood Marshall:
(Voice Overlap)
John T. Murphy:
The record here is — is very clear — very clear that a — affirmative and aggressive effort is made by the California Department of Corrections to provide the press with access to the prisons.
In their access to the prisons, they have the opportunity to confront and to meet with inmates.
This is the random process in which many, many excellent press stories have been developed this way.
Both from the point of view of the administration of the prisons and also from the point of the view of the prisoners themselves, it’s not an attempt to cut off all access of the inmate to the outside world through the — through the press.
The problem is with the press interview.
Now, if there were a problem with the family interview or if there was a problem with a clergymen interview, then remedial action would have to be taken, now inmates are allowed to see members of their family because it has been determined that this has a remedial effect in the rehabilitation of the inmate.
However, the same individuals who have made this decision that the family has access to the inmate do not find the same rehabilitative effects to the innate by the face-to-face press interview.
Thurgood Marshall:
And that person is who?
Who makes that decision?
If one is rehabilitative and the other is not and (Voice Overlap) when you do, will you also give me his qualification as a psychiatrist, a psychologist or what are his qualification to make such a determination?
John T. Murphy:
The law of California best seen control and the management and the care of prisoners in the hands of my client, Mr. Procunier and he is the one that is ultimately responsible for making the decisions.
His qualifications have been set out in the — in the record, in the testimony which he gave here in Washington D.C. and the Washington Post case which is going to follow this case, where he was a witness and he — he set forth there what his qualifications were almost 30 years of experience in the correctional field beginning with a custodial officer who will also at one time had been administrators in the State of Utah in the correctional system in the State of Utah.
His experience in rehabilitation is what?
John T. Murphy:
His experience in rehabilitation is through very qualified staff — technical staff which includes psychiatrists, psychologists and correctional experts which he relies upon in making his decision.
He makes his decisions in three steps in effect, you have the correctional problem which is concerned with security and rehabilitation, you have the administrative problem in which he has to think ahead, he must anticipate what the future is going to be as far as his institutions go and he has to take into consideration the legal problems as well.
Because in making his decision without some information is what the legal ramifications of those decisions are, he would not be able to make the right decision.
Now, his testimony in the Washington post case I think is a very illustrative of what the situation was.
As he indicates and this testimony was made a part of the record here, as he indicates in his testimony, that this decision was made with great reluctant, considerable amount of reluctance after much agonizing but he was confronted with a problem, a problem that he, under the Law of California, had to make a decision on and that problem was the effect that these interviews were having on inmates within the institutions.
del
John T. Murphy:
All right, but that’s a correctional part of it.
He may have his — his views on –on correctional problems, but he also has a problem of running and administering a prison system of over 20,000 inmates, and he has consider legal problems as well because he cannot and he will not attempt to be selective in deciding who is going to get an interview or who isn’t going to get an interview.
What institutions are going to get interviews, and what institutions are not going to get interviews.
We could just imagine, we could just speculate without any — any great difficulty, what would happen in the event that a — a procedure has been propose by the plaintiffs in this case were to be adopted and unfettered discretion was left with the superintendents and the wardens.
And one inmate gets an interview and another inmate doesn’t get an interview, an inmate is transferred from a minimum security institution into a maximum security institution and he doesn’t get his interview there would be all kinds of litigation.
And litigation from the correctional point of view presents its own problems, and administrative problem because litigation whether it’s a merit or doesn’t have merit involves time and effort and energy on the — on the part of the correctional people and this is something that he has to plan ahead.
Now the concept —
Potter Stewart:
Mr. Murphy, these are — I don’t want to shorten your submission to us on this practical and sociological problems, some of which we encourage you talk about with our questions but we have here a constitutional case involving — involving the First Amendment of the United States Constitution made applicable to the State of California through the Fourteenth Amendment of the Constitution.
Administered in the very first point in your brief that is what right under First and Fourteenth Amendment if any do prisoners in a State Prison Institution have to demand a personal interview with some report for some paper, is this certainly isn’t the — the right of a free press, the prisoners aren’t running a newspaper and free speech and such, I did know, gave anybody an unconditional right to a personal interview with a reporter from a paper.
I hope you’ll get to those constitutional questions.
John T. Murphy:
Yes, Your Honor, I’ll get to that point right now, specifically the answer to your question, the inmate has no first amendment right to demand that a press interview be set up with a consenting news man as a First Amendment right.
Now, the First Amendment or freedom of — of expression, when I put it that way, does to — to some extent permeate the walls of the prison, I think it’s — it’s clear that the inmate has access to the Court, and the — but this access to the courts does not give him a right to come here and argue his case in a court as matter of constitutional right.
He has in conjunction with his access to the Court, he has the right to receive a — a visit from a member of his family.
I mean excuse me — to receive a — a visit from his attorney to see that his rights are — are taken care of.
Warren E. Burger:
Right on that point to pursue what Mr. Justice Stewart prove to you which I think is important to all of us, his right to an attorney and do you categorized that as constitutional right?
John T. Murphy:
Insofar as the attorney is necessary in order to vindicate his rights —
Warren E. Burger:
Now then —
John T. Murphy:
— in the — in the court of law.
Warren E. Burger:
The right to visit with his family and his friends under — under regulated hours and that sort of thing, you treat that as a constitutional right or is that a policy problem by the administrators as part of his treatment rehabilitation whatever you want to call it.
John T. Murphy:
No, we would not treat it as our — our position is, it is not a constitutional right, I could imagine a set of circumstances, however, if you were to lock an inmate away and deprive him for an extended period of time of any visits from somebody from the outside that that may rise to a constitutional right on a cruel and unusual punishment.
I could also see that if you took an individual inmate and denied him access to his family, but you’ll let all other inmates visit with their family that under those circumstances that there may be an equal protection argument that could be urged, but to say that as a matter of United States Constitutional law mean, has a right to — to visit with the member of his family, I think is incorrect.
William J. Brennan, Jr.:
How about a visit with his attorney?
John T. Murphy:
I think he has a right to visit with his attorney, well in conjunction with his access to the Court.
William J. Brennan, Jr.:
Constitutional then.
Potter Stewart:
Well, that would be probably the Sixth and Fourteenth Amendment, right?
John T. Murphy:
It could be.
It could be.
I don’t think it’s part of this — this particular case, but I could see a set of circumstance.
William J. Brennan, Jr.:
No, no.
There is no Sixth Amendment claim — claim made in this case, no.
del
John T. Murphy:
Right, but let me continue on this two on — on this First Amendment freedom of expression question Your Honor, that he has a right to petition the government for redress as a part of the First Amendment.
We don’t argue with that, but again, it’s limited, it’s curtailed to circumscribe, you can’t go to the legislature and lobby for his — for his own bill.
All right.
Now other rights that may be considered as part of the freedom of expression are seriously curtailed by the fact of the incarceration, his right to assembly, if it exists at all, is seriously curtailed by the fact of his incarceration.
Also, his right to practice his religion, the way he wants to practice his religion, he may have freedom of thought, but he may not be able to, well, a famous California case.
He may not be able to smoke peyote as part of the exercise of his religion.
Restrictions could be placed on him there.
And I think he has also curtailed right to engage in speech.
What Justice Marshall indicated about preaching Jesus Christ Superstar to the press, well he certainly could not preach his religion in one of our major cell blocks with 250 inmates, nor could he preach his religion in the middle of the big yard at San Quentin Prison.
Now, was there a seriously concern, a circumscribe right because of the delicate situation of the relationship between the State of California and its inmates is a particularly intimate relationship.
This was pointed out by this Court in — in the Price case.
It’s an intimate type of relationship.
It’s not the same relationship as between the state and the citizen and free society.
The management and the care of prisons and inmates isn’t eerie in which the State has a particularly strong interest.
And there is also been a traditional judicial reluctant, which I certainly urge here, to decide matters which have been determined based on the first hand information that’s available to the state authorities.
Where the state authorities are exercising their expertise in special field and they have reached a decision and have settled upon a choice after considerable amount of deliberation on the subject.
Now —
Potter Stewart:
Mr. Murphy you’re arguing this case both — both the petition and the cross-petitions?
John T. Murphy:
Yes, Your Honor.
Potter Stewart:
So both of these petitions and responding.
So I expect you must also deal with the asserted right of the petitioning newspaper people in this case.
John T. Murphy:
Yes, Your Honor.
If I may get back to some of the questions that were asked earlier and I think I can respond to those questions again, in terms of the interest of the — of the media.
Now this case was — was tried and argued, as a matter of fact a complaint alleged and asserted in the arguments of counsel that the press did have a special access to the sources of information namely the inmates.
And one of the arguments that’s been advanced which deserves somewhat more discussion, we have talked about it in our brief, but it’s been — it’s advanced at — at length is that, when family members are allowed in, when clergymen are allowed in to talk to individual inmates why is not the press allowed in.
When a family member comes in, is to talk to a family member.
A father comes in to talk to his son.
He doesn’t come in to talk to all the prisoners in the institution.
When a lawyer comes in, he comes in to talk to his client.
He doesn’t come in to talk to everybody that happens to be in the institution.
del
John T. Murphy:
Same would be for clergymen, it’s a very limited right of access not to the general public but to certain segments of the general public.
What’s being demanded here by the media is special access.
Now they argue in their briefs that they want no more than what is afforded the general public.
They get what is afforded to general public.
California has maintained a — a progressive approach of an open prison institution in which thousands of people are allowed to tour the facilities, to engage in various programs with inmates.
Potter Stewart:
America as general public, in fact if John Smith showed up, and said “I just want to conduct a tour to the prison” would they let him do it?
John T. Murphy:
If he does not, the a prior criminal —
Potter Stewart:
They said who are you and then he said, I’m John Smith, I’m interested in the guided tour through the prison.
John T. Murphy:
If he does not have a criminal record, the chances are — are very good.
William H. Rehnquist:
Would he be allowed to say, I’d like to speak to inmate X and talk to him for a while?
John T. Murphy:
No he would not.
If he were to participate in an Alcoholics Anonymous program, he could go in.
If he were to participate in the black cultural studies program, he could go in.
Any other programs, the records shows here —
Potter Stewart:
In my hypothetical, gentleman John Smith wasn’t there to participate in anything, he was just a citizen and he was understood in going through the prison, could he do it in California?
John T. Murphy:
Yes, Your Honor, I think the record shows that here as far as San Quentin Prison is concerned anyway within a certain period of time during the year, they have regularly conducted tours as you would have tours of the White House, or you would have the tours of this particular building and general public gets in on those.
Thurgood Marshall:
You understand your answer to my Brother Stewart’s question.
If Joe Doaks walks out to San Quentin out of nowhere this afternoon, he says, I want to tour and he wouldn’t get any tour.
John T. Murphy:
He would not be able to get a private personally-conducted guided tour.
Thurgood Marshall:
Will he get any kind of a tour?
The answer is no, and you know it’s no.
You know, nobody walks in the street and defend the entry and everybody stops and takes him around.
John T. Murphy:
He would have to Your Honor and maybe I didn’t make the point clear, he would have to qualify for one of the public tours, regularly scheduled tours.
The institution but I thought I made it clear that the prisons are closed off to the public.
They’re not open to the public to the extent accepted the extent that the administrators allow them to be open and it is part of the program of rehabilitation to let — to let members of the general public it’s — to come into the institutions.
It’s also part of the program of the –of the prisons to allow newsmen to come in on special assignments to check out matters.
Now, the record here shows that some examples but there’s other — many other examples that could be — could be suggested as in or in fact could be shown at a — a newsman involved with a special topic for example.
He is concerned about the topic of rape.
He will make a request, the institution will make convicted rapist available to him, he will interview them, get their background and in fact there was television show to this effect.
A newsman will go in, a newsman will go in, he’s interested in the senior citizens at the prison to make a study as to how the senior citizens, the older inmates, are taking to the new breed of a — of inmate that’s surviving.
del
Byron R. White:
Is the issue here whether — whether press interviews may be forbidden entirely, is that — is that it?
Your reglation —
John T. Murphy:
The issue —
Byron R. White:
— that’s forbidden entirely doesn’t it?
And that’s what you’re defending.
John T. Murphy:
They’re not forbidden entirely.
Byron R. White:
That’s what I says on the face of the regulation
John T. Murphy:
The regulation says press and media interviews with specific individual inmates.
Byron R. White:
All right.They are entirely forbidden with specific inmates.
John T. Murphy:
Individual inmates.
Byron R. White:
And that’s you’re defending
John T. Murphy:
Yes, Your Honor.
Byron R. White:
And that’s what the District Court held unconstitutional?
John T. Murphy:
As being unnecessarily restrictive of the First Amendment rights.
Byron R. White:
It didn’t hold — it didn’t hold, the District Court didn’t hold that you could not regulate.
John T. Murphy:
That’s right, Your Honor, the District Court said that —
Byron R. White:
And you’re here saying that you have the right to forbid them entirely.
John T. Murphy:
Individual face-to-face interviews with — in the actual practice under the procedure, individual interviews could occur, but only on a random basis.
Warren E. Burger:
Well, when you say specific, you mean under this regulation, this regulation forbids having the news media say, I want to talk, I want an interview for next Wednesday or sometime with Seran Seran or some other specific prisoner, but are you saying that under this regulation, they can see prisoners at random not selecting them on their own part?
John T. Murphy:
Yes, Your Honor.
Yes, Your Honor, and that is the — is the way it has — has been operating.
Warren E. Burger:
Is there any — I see nothing in the regulation, but in practice is there any limitation placed that they may interview the prisoner, but they may not identify him and quote him by name?
John T. Murphy:
No, Your Honor.
Nor is there any restriction on the topic that they can talk to the prisoner about.
Warren E. Burger:
And when you say that they’re permitted to do it at random, who does the random picking?
John T. Murphy:
It would depend upon the circumstances, Your Honor, the record shows here that there was some press interest in those that had been released from death row.
And consequently some of those inmates have fit into that category with their consent were made available to the press so that the press could engage them in in-depth type of interviews on — on that particular subject.
The difficulty is this, and this getting — is getting back to this — this big wheel syndrome.
The — and get it — it’s also getting back to the case of — of Estes versus Texas because the tendency of the press is to focus in on the notorious trial.
The same situation develops as far as an institution.
del
John T. Murphy:
The tendency will be the focus in on the notorious inmate and it raises all kinds of practical problems as to what is going to be the role of that inmate with relation to members of the staff, with other inmates in his own rehabilitative program.
Okay, that’s one thing.
We have the problem that if we allow specific individual inmates to interview members of the — of the press of their choice with the consent of the press, the only way that the inmate is going to attract the — the attention of the press is to stage some kind of incident to make him newsworthy, to get himself involved in some kind of newsworthy event.
He’ll also have the situation that incidence could be staged at that time that the press is on the scene.
We’ve all experienced this situation.
The mere appearance of the press can have a disruptive effect.
We have even had situations where demands are made for national TV in the form of extortion to get to accomplish an end for the — that the inmate is attempting to — to reach.
It’s looked on as — as an administrative problem.
Now, California —
Thurgood Marshall:
The administrative problem could be regulated, couldn’t it?
John T. Murphy:
Certainly, Your Honor and this is a regulation.
Thurgood Marshall:
The regulation, I don’t know — a regulation that says no, is not a kind of regulation I’m talking about.
John T. Murphy:
Well, it’s — it depend on where you start, Your Honor.
Thurgood Marshall:
I mean one of the ways if you have trouble with family visiting, one way is just to keep all the families out, but instead of that, she regulate it, they come at a certain time.
Well, why can’t you say the press can come at a time that we decide is not disruptive, when, that you shall hold your things someplace where there’s no other prisoner within a block.
John T. Murphy:
This was considered, Your Honor.
Thurgood Marshall:
And you mean it’s impossible to do it?
John T. Murphy:
It was considered and it was done in California from 1957 until 1961.
There were no serious regulations on the press during that period of time.
We had a discretionary procedure up until August of — August of 1961.
Thurgood Marshall:
And you can’t go back?
John T. Murphy:
Excuse me, 1971, the procedure in California was to leave it up to the discretion of the warden or the superintendent, he would make the arrangements for the interview and the interview was carried out.
It was abandoned and —
Thurgood Marshall:
But you say there is no way that you can set up regulations that will grant what this Court here from the United States District Court, to allow that order to stand with the regulation, was that order invited and used rather than to try to work it out, you want us to not get out, is that right?
Is that right?
John T. Murphy:
This — I see where my clients — I will answer the questions as briefly as — as I can.
This is not a total ban on interviews.
It is a — an attempt to come up with the regulation to meet a problem.
And in California, the problem is particularly serious.
Inmates are engaged in gang warfare.
del
John T. Murphy:
There are alliances of groups within — within the prison.
They are seeking notorieties or rhetoric and other means.
It has been decided by the prison administrators that it is in the best interest not only of the — of the institution, but of the inmate himself that they’re not be this particular type of interview.
Thurgood Marshall:
(Inaudible)
John T. Murphy:
That is correct, Your Honor.
Warren E. Burger:
One more question, is there any restriction here except that the media cannot select their own prisons to be interviewed under this regulation, is that or is that not the only restriction?
John T. Murphy:
That is the extent of the — of the restriction.
Warren E. Burger:
They can come in, they can interview, they can — they can take their notes, they can write their articles and they can identify the person interviewed, but they are not permitted to pick out the particular prisoners that they want to interview, is that —
John T. Murphy:
That’s right, Your Honor, there — in institutions and of course there’s — there’s some local rules as far as using TV cameras and — and such, in other words, you can’t photograph a — an inmate unless you have his consent to — you know there’s mechanical problems which I really don’t think are worth even getting into a discussion on because they’re so — so practical as far as — as far as the institutions would go.
Warren E. Burger:
Now, we have used up a great deal time necessarily, we will extend your time five minutes.
We will enlarge yours five minutes, so that you’ll have the same amount of time.
John T. Murphy:
Thank you, Your Honor.
Warren E. Burger:
Mr. Bass?
Stanley A. Bass:
Mr. Chief Justice, and may it please the Court, at the outset I would like to point out two factors that make this case very different from what might be termed, the run-of-the-mill prison case.
In the first place, this does not involve just prisoner’s rights but involves an amalgam of the prisoner’s rights, the right of the press and the public’s right to know.
We’re talking about a subject of paramount public concern the question of what goes on in the nation’s prisons and therefore the questions — general questions is to what the first amended rights prisoners may have to talk about the arts to discuss matters of social concern or things that do not have to do with the grievances pertaining to prison conditions are not involved here.
The second feature which is a rather extraordinary development is the fact that we do not seek to override administrative discretion in this case.
The director of the Department of Corrections, Mr. Procunier has candidly admitted that he would prefer more flexible regulation and that the only reason that he has his regulation is not based upon penalogical considerations, but legal advice.
And the courts are clearly qualified and a knockdown by any rule of deference to administrative discretion to defer to the opinions of counsel.
As a matter of fact, decisions such as Price versus Johnston which involve the power of a District Court to order a prisoner brought before it to argue a case is discretionary and (Voice Overlap)
William J. Brennan, Jr.:
And Mr. Bass I — I gather certainly, we can’t intervene unless to some constitutional right (Inaudible)
Stanley A. Bass:
That’s correct, well —
William J. Brennan, Jr.:
It’s not the matter whom you’re speaking for, that’s — that’s really got to me is trusting your right.
Stanley A. Bass:
Yes, well, I was just — I was going to get to that as soon as we get these two points out of the way, that is the question of the amalgam theory and the question of not overruling administrative discretion
Warren E. Burger:
But each one of these rights as Justice Stewart previously and Justice Brennan had now opines must be linked to some constitutional guarantee must it not?
Stanley A. Bass:
That’s correct.
Warren E. Burger:
That it is the right the right of the inmate to speak and to presumably associate and the right of the news representative to come in.
Stanley A. Bass:
The —
Warren E. Burger:
Each one of those must be linked to a specific constitutional guarantee, must it not?
Stanley A. Bass:
Yes, Mr. Chief Justice the — the rights that we seek to enforce come from a number of decisions of — of this Court.
del
Stanley A. Bass:
The decision of this Court protecting for example the right of access to the Court which is part of the umbrella right of petition for redress of grievances, also the prisoner’s right to communicate.
Surely, the prisoners do not lose their First Amendment rights when they are incarcerated for example just two years ago in Cruz versus Veto, the Court pointed out that persons in prison are not bereft of their First Amendment rights to practice religion and in the footnote the Court indicated reasonable opportunities to practice religion should be made available.
Potter Stewart:
I’m interest Mr. Bass in the — let’s accept your hypothesis that prisoners don’t lose, let’s go far if you want to go to any of their First Amendment rights just my hypothesis, what right does a person outside of prisoner have to access to a newspaper?
Stanley A. Bass:
Well, presumably a person on the outside would have the right to meet with a newsman at his office or perhaps a newsman would come to the —
Potter Stewart:
But why, why would he?
If I went down to the Washington Post, an average John Smith, say I want to come in here, I have something to tell the reporter and they would say, well, we’re awfully sorry, even — even if we’re not on strike we’re still sorry, we’re not interested in what you have to say, you’ve been here before and we’re not interested in you.
What constitutional right does he have to go in there and talk to a reporter?
Stanley A. Bass:
We’re — we’re not suggesting that were the parties other than willing they would be right to coerce the press for example.
Potter Stewart:
Well that’s — the press has willingness, you’re unwillingness doesn’t have to do with a citizen’s right then you get over to the press’ right, that’s something quite different, but you’re — you’re here representing Mr. Hillery as a prisoner.
Stanley A. Bass:
Right.
The inmate has a right of communication and this right of communication and the right of association permit him to correspond or to communicate with the press in order to discuss the matters that deal with grievances.
Potter Stewart:
Well other citizens don’t have that right, do they, constitutional right, they can write letters to the newspapers, the newspaper have an absolute right to throw them in the waste basket.
Stanley A. Bass:
That’s true.
The press has right to get the news as part of amalgam theory that supports the inmate’s right to communicate on that subjects of — of grievances.
Potter Stewart:
It seems to me you’re suggesting that an inmate has a right superior to an ordinary?
Stanley A. Bass:
I was suggesting at the — that the inmate has the same right as a citizen.
Byron R. White:
What — what regulation which entered which is a state interference with communication was at issue here.
Stanley A. Bass:
That’s correct.
Byron R. White:
It’s not isn’t it the ability to the regulation.
Stanley A. Bass:
The regulation interferes with communication.
It does so by absolutely precluding.
Byron R. White:
And I suppose the regulation like that are a law perhaps that prevented an ordinary citizens from going to the Washington Post might — be might be up here on that too.
Stanley A. Bass:
Well, we — we suggest that the underlying right is there whether or not the State can show some justification to qualify that right would depend upon whatever is asserted or the record that’s developed, but in this case the — showing that the State has made has been completely insufficient.
The State refers to the big wheel syndrome but it should be obvious to everyone that the problems mentioned by the State, that is extensive interviews of notorious inmates can be dealt with — with a much narrower regulation that we have here.
And — and the point that establishes that is that Director Procunier himself recognizes that and it was only because his lawyer told him he has to treat all inmates equality at least as to this point that he cannot have a regulation that decides on a case-by-case basis or even within guidelines.
Thurgood Marshall:
— implications, as I understand the State and I want to get this from you if it’s agreeable, he can write to the newspaper.
Stanley A. Bass:
Yes.
Thurgood Marshall:
But he could send any material he wants to the newspaper.
He can send anything he wants to the television studio, is that right?
Stanley A. Bass:
Yes.
del
Thurgood Marshall:
Can they write him?
And —
Stanley A. Bass:
Yes.
Thurgood Marshall:
— ask him for it?
Stanley A. Bass:
Presumably, they can.
Thurgood Marshall:
So, the only issue here is the television, face-to-face, isn’t it?
Is there anything other than that?
Stanley A. Bass:
A face-to-face interview.
Thurgood Marshall:
Is there anything other than that is?
Stanley A. Bass:
I wouldn’t characterize the — the question as one of television, it would be — it would be right of the reporter as well as the inmate to have the face-to-face meeting.
Thurgood Marshall:
And other than face-to-face, there’s nothing else here?
Stanley A. Bass:
No conduct involved —
Thurgood Marshall:
In this case?
Stanley A. Bass:
— other than the discussion.
Thurgood Marshall:
In this case, now where do you get that right to have the face-to-face interview to try to get what Justice Stewart was asking about?
Where does the inmate get that right to have a face-to-face interview in prison?
Stanley A. Bass:
The — well, If I understand Your Honor the question, it’s first, where does the inmate get the right and then where does he get the right in prison.
Thurgood Marshall:
No, he’s in prison.
Stanley A. Bass:
He — He cannot go out.
We start with the — with the basic proposition that an inmate is not entitled to go out on — on visits.
Of course if the State wants to give him referral and that’s discretionary.
So he’s necessarily precluded by the State’s action and keeping him in the prison, these forms of communication are limited, that is to say the only way he can communicate with an outsider.
Meaningfully speaking, it’s for the outsider to come in.
And so in order for the press to have a meaningful discussion about the grievances with the inmate, the representative of the press must come in and talk with the inmate.
Now, I — I take the State to argue that a face-to-face meeting is completely unnecessary because adequate alternative methods are available, but this ignores both the record and the other cases involving this issue and the record in this case.
Specifically on page 159 of the appendix is the affidavit of Bobby Bly, who is one of the inmates in this case who specifically mentioned the need to “see and talk with representatives from the media and express my views on different topics freely, as well as fully describe the conditions I am being subjected to as a black prisoner”.
Now this —
William H. Rehnquist:
Mr. Bass this raises a question that may — may be more procedural and substantive, but did the District Court grant anybody’s motion for summary judgment here?
Stanley A. Bass:
Apparently there was an oral motion for summary judgment.
Originally the plaintiffs had moved before the single judge for a preliminary injunction.
del
Stanley A. Bass:
That was granted.
The State came in and said the three-judge Court is required and vacated it, but the motion for preliminary injunction was left hanging.
Then when a three-judge Court convened, they heard the motion for preliminary injunction and apparently without any objection from the parties consolidated the hearing on the merits with the motion for preliminary injunction and called out a motion for (Voice Overlap).
William H. Rehnquist:
But what’s the posture of an affidavit like this?
If — if you have a ruling in your favor, you — you can assume that the Court shows to believe it if the ruling is against you, you have to assume that the Court shows not to believe it.
Stanley A. Bass:
The Court does say that based upon the affidavits and exhibits and so forth in the file, it makes its ruling.
So it did consider the affidavit of Bly as well as the letters written by journalist and the testimony of Mr. (Inaudible)
And in the testimony of Mr. Procunier in the Washington Post case was also put in the record by the defendants.
So everything was considered by the District Court.
William H. Rehnquist:
But can — can you tell from — from the findings of the District Court whether they chose to believe the particular affidavit you are relying?
Stanley A. Bass:
Well, you cannot tell as to that specific point, on the other hand, since there was nothing on the record to rebut that, it really doesn’t seem to be a consequential point that is — since it’s in the record and the District Court ruled in favor of the inmate plaintiffs and the State didn’t rebut it, it’s — the judgment is supportable by what’s in the record.
Warren E. Burger:
Would you think there is a constitutional right when they have visitors day for the general public, not for relatives, just visitors who are going through to see the prison, there’s a constitutional right either on those visitors or in the prisoners to stop and talk to each one of them to conduct visits.
Stanley A. Bass:
We need not reach that, a problem in this case because the individual just walking though who was just a person does not play the same role as the press does in terms of reporting the grievances and since the —
Warren E. Burger:
Well, he might — he might.
Stanley A. Bass:
Well he — if he purported to play a role of informing the public more weight would be given there to the need of communication, but in this case —
Warren E. Burger:
It might a lawyer who is just generally interested in the subject of penology.
Do you think his right is any less of that of a newspaper or other media?
Stanley A. Bass:
Mr. Schwartz of course will argue the — the freedom of the press.
I would simply point out that since the right of the press is part of this amalgam that the press is recognized specifically in the First Amendment and it would have a right of reporting on those conditions.
I — I would then get to the State’s interest that are asserted in defense of the regulation and would point out that insofar a security is advanced as a justification, the warden answers to the interrogatories make rather plain that if the prisoner is dangerous or if the visiting room is overcrowded or if the media abused its access, then of course subsequent interviews could be denied, those are relative parts of what might — regulation of interviews.
Interestingly, Mr. (Inaudible) testified on page 260 of the record that the visit in the visiting room would not create greater security problems than — than a tour with a newsman would go at random on let’s say, the maximum security facilities.
With respect to the big wheel theory which is I sense is really the problem that state —
Warren E. Burger:
I think we will take that theory first thing in the morning.
