Eve PELL et al., Appellants, v. Raymond K. PROCUNIER, Director, California Department of Corrections, et al. Raymond K. PROCUNIER, Director, California Department of Corrections, et al., Appellants, v. Booker T. HILLERY, Jr., et al.

It cannot be contended that because California permits family, friends, attorneys, and clergy to visit inmates, it cannot limit visitations by the press. No member of the general public who does not have a personal or professional relationship to the inmate is permitted to enter the prison and name an inmate with whom he would like to engage in face-to-face discourse. Thus, the press is granted the same access in this respect to prison inmates as is accorded any member of the general public. Indeed, as is noted in the text, the aggregate access that the press has to California prisons and their inmates is substantially greater than that of the general public. fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions' ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, '(d)uring an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23 § 415.071 was adopted to mitigate the problem.' 364 F.Supp., at 198. It is against this background that we consider the media plaintiffs' claims under the First and Fourteenth Amendments.

The constitutional guarantee of a free press 'assures the maintenance of our political system and an open society,' Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 543, 17 L.Ed.2d 456 (1967), and secures 'the paramount public interest in a free flow of information to the people concerning public officials,' Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964). See also New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). By the same token, "(a)ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 574 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U.S., at 762—763, 92 S.Ct., at 2581 2582; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969).

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court went further and acknowledged that 'news gathering is not without its First Amendment protections,' id., at 707, 92 S.Ct., at 2670, for 'without some protection for seeking out the news, freedom of the press could be eviscerated, id., at 681, 92 S.Ct., at 2656. In Branzburg the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to disclose the identity of their confidential sources to a grand jury when that information was needed in the course of a good-faith criminal investigation. The Court there could 'perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings (was) insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial,' id., at 690—691, 92 S.Ct., at 2661.

In this case, the media plaintiffs contend that § 415.071 constitutes governmental interference with their newsgathering activities that is neither consequential nor uncertain, and that no substantial governmental interest can be shown to justify the denial of press access to specifically designated prison inmates. More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press—access broader than is accorded members of the public generally—face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree.

'It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. . . . Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.' Branzburg v. Hayes, supra, at 684—685, 92 S.Ct., at 2658. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.

The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.9 It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, supra, and that government cannot restrain the publication of news emanating from such sources. Cf. New York Times Co. v. United States, supra. It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court. Accordingly, since § 415.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee.

For the reasons stated, we reverse the District Court's judgment that § 415.071 infringes the freedom of speech of the prison inmates and affirm its judgment that that regulation does not abridge the constitutional right of a free press. Accordingly, the judgment is vacated, and the cases are remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Judgment vacated and case remanded.

Mr. Justice POWELL, concurring in part and dissenting in part.

These cross-appeals concern the constitutionality, under the First and Fourteenth Amendments, of a regulation of the California Department of Corrections that prohibits all personal interviews of prison inmates by representatives of the news media. This regulation is substantially identical to the United States Bureau of Prisons policy statement whose validity is at issue in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514. For the reasons stated in my dissenting opinion in that case, post, at 850, 94 S.Ct., at 850, I would hold that California's absolute ban against prisoner-press interviews impermissibly restrains the ability of the press to perform its constitutionally established function of informing the people on the conduct of their government. Accordingly, I dissent from the judgment of the Court.

The California cross-appeals differ from the Washington Post case in one significant respect. Here the constitutionality of the interview ban is challenged by prisoners as well as newsmen. Thus these appeals, unlike Washington Post, raise the question whether inmates as individuals have a personal constitutional right to demand interviews with willing reporters. Because I agree with the majority that they do not, I join Part I of the opinion of the Court.[836]

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

These cases involve the constitutionality, under the First and Fourteenth Amendments, of prison regulations limiting communication between state and federal prisoners and the press. Nos. 73—754 and 73—918 are cross-appeals from the judgment of a three-judge District Court for the Northern District of California. 364 F.Supp. 196. Suit was brought in that court by four California state prisoners and three professional journalists challenging the constitutionality of California Department of Corrections Manual § 415.071 which imposes an absolute ban on media interviews with individually designated inmates.

The court upheld the prisoners' claim that this regulation is violative of their right of free speech, and, in No. 73—754, the Director of the California Department of Corrections appeals from the court's injunction against further enforcement of the regulation. As to the journalists' claim, the court noted: 'The media plaintiffs herein and amicus curiae argue that § 415.071 is violative of not only the prisoners' First Amendment rights, but also the press'. The court disagrees.' 364 F.Supp., at 199. In No. 73—918, the journalists appeal this rejection of their claim.

No. 73—1265 involves a media challenge to Federal Bureau of Prisons Policy Statement 1220.1A, 4nb)(6), which prohibits press interviews with any particular federal prisoner in any medium security or maximum security facility. The District Court held the total ban violative of the First Amendment's free press guarantee and enjoined its enforcement. 357 F.Supp. 770. The Court of Appeals affirmed sub nom. Washington Post Co. v. Kleindienst, 161 U.S.App.D.C. 75, 494 F.2d 994. As the majority notes, '(t)he policies of the Federal Bureau of Prisons regarding visitations to prison inmates do not differ significantly from the California policies' here under review.

In analyzing the prisoner challenge to California's absolute ban on media interviews with individual inmates, I start with the proposition that 'foremost among the Bill of Rights of prisoners in this country, whether under state or federal detenton, is the First Amendment. Prisoners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirement of due process. . . . Free speech and press within the meaning of the First Amendment are, in my judgment, among the pre-eminent privileges and immunities of all citizens.' Procunier v. Martinez, 416 U.S. 428—429, 94 S.Ct. 1800, 1818, 40 L.Ed.2d 224 (Douglas, J., concurring in judgment). With that premise, I cannot agree with the Court that California's grossly overbroad restrictions on prisoner speech are constitutionally permissible. I agree that prison discipline, inmate safety, and rehabilitation must be considered in evaluating First Amendment rights in the prison context. First Amendment principles must always be applied 'in light of the special characteristics of the . . . environment.' Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731; Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266. But the prisoners here do not contend that prison officials are powerless to impose reasonable limitations on visits by the media which are necessary in particularized circumstances to maintain security, discipline, and good order

All that the prisoners contend, and all that the courts below found, is that these penal interests cannot be used as a justification for an absolute ban on media interviews because '(b)road prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405. And see Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213.

It is true that the prisoners are left with other means of expression such as visits by relatives and communication by mail. But the State can hardly defend an overly broad restriction on expression by demonstrating that it has not eliminated expression completely.

As Mr. Justice Black has said:

'I cannot accept my Brother Harlan's view (in dissent) that the abridgment of speech and press here does not violate the First Amendment because other methods of communication are left open. This reason for abridgment strikes me as being on a par with holding that governmental suppression of a newspaper in a city would not violate the First Amendment because there continue to be radio and television stations. First Amendment freedoms can no more validly be taken away by degrees than by one fell swoop.' NLRB v. Fruit Packers, 377 U.S. 58, 79—80, 84 S.Ct. 1063, 1075, 12 L.Ed.2d 129 (concurring opinion).

State might decide that criticism of its affairs could be reduced by prohibiting all its employees from discussing governmental operations in interviews with the media, leaving criticism of the State to those with the time, energy, ability, and inclination to communicate through the mails. The prohibition here is no less offensive to First Amendment principles; it flatly prohibits interview communication with the media on the government's penal operations by the only citizens with the best knowledge and real incentive to discuss them

agree with the court below that the State's interest in order and prison discipline cannot justify its total ban on all media interviews with any individually designated inmate on any matter whatsoever. Such a coarse attempt at regulation is patently unconstitutional in an area where '(p)recision of regulation must be the touchstone.' NAACP v. Button, supra, 371 U.S., at 438, 83 S.Ct., at 340; Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321. I would affirm the District Court's judgment in this regard

II

In Nos. 73—918 and 73—1265, the media claim that the state and federal prison regulations here, by flatly prohibiting interviews with inmates selected by the press, impinge upon the First Amendment's free press guarantee, directly protected against federal infringement and protected against state infringement by the Fourteenth Amendment. In rejecting the claim, the Court notes that the ban on access to prisoners applies as well to the general public, and it holds that 'newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.' 417 U.S. 817, at 834, 94 S.Ct. 2800, at 2810, 41 L.Ed.2d 495.

In dealing with the free press guarantee, it is important to note that the interest it protects is not possessed by the media themselves. In enjoining enforcement of the federal regulation in No. 73—1265, Judge Gesell did not vindicate any right of the Washington Post, but rather the right of the people, the true sovereign under our constitutional scheme, to govern in an informed manner. 'The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people.' Branzburg v. Hayes, 408 U.S. 665, 721, 92 S.Ct. 2646, 2692, 33 L.Ed.2d 626 (Douglas, J., dissenting).

Prisons, like all other public institutions, are ultimately the responsibility of the populace. Crime, like the economy, health, education, defense, and the like, is a matter of grave concern in our society and people have the right and the necessity to know not only of the incidence of crime but of the effectiveness of the system designed to control it. 'On any given dat, approximately 1,500,000 people are under the authority of (federal, state and local prison) systems. The cost to taxpayers is over one billion dollars annually. Of those individuals sentenced to prison, 98% will return to society.'1 The public's interest in being informed about prisons is thus paramount.

As with the prisoners' free speech claim, no one asserts that the free press right is such that the authorities are powerless to impose reasonable regulations as to the time, place, and manner of interviews to effectuate prison discipline and order. The only issue here is whether the complete ban on interviews with inmates selected by the press goes beyond what is necessary for the protection of these interests and infringes upon our cherished right of a free press. As the Court of Appeals noted in No. 73 1265: '(W)hile we do not question that the concerns voiced by the Bureau (of Prisons) are legitimate interests that merit protection, we must agree with the District Court that they do not, individually or in total, justify the sweeping absolute ban that the Bureau has chosen to impose.' 161 U.S.App.D.C., at 86, 494 F.2d, at 1005.

It is thus not enouigh to note that the press—the institution which '(t)he Constitution specifically selected . . . to play an important role in the discussion of public affairs'2—is denied no more access to the prisons than is denied the public generally. The prohibition of visits by the public has no practical effect upon their right to know beyond that achieved by the exclusion of the press. The average citizen is most unlikely to inform himself about the operation of the prison system by requesting an interview with a particular inmate with whom he has no prior relationship. He is likely instead, in a society which values a free press, to rely upon the media for information.

It is indeed ironic for the Court to justify the exclusion of the press by noting that the government has gone beyond the press and expanded the exclusion to include the public. Could the government deny the press access to all public institutions and prohibit interviews with all governmental employees? Could it find constitutional footing by expanding the ban to deny such access to everyone?

agree with the courts below in No. 73—1265 that the absolute ban on press interviews with specifically designated federal inmates is far broader than is necessary to protect any legitimate governmental interests and is an unconstitutional infringement on the public's right to know protected by the free press guarantee of the First Amendment. I would affirm the judgment in this regard. Since this basic right is guaranteed against state infringement by the application of the First Amendment to the States through the Fourteenth,3 California's absolute ban can fare no better. I would reverse the District Court's rejection of this claim in No. 73—918.

This litigation was first initiated before a single judge and proceeded for nearly a year with the court's attention focused on the interview practice at San Quentin State Penitentiary, where all the inmate plaintiffs are confined, where the interviews sought by the media plaintiffs were to occur, and where all the defendants, except Mr. Procunier, are employed. After the matter was briefed and argued, the single judge preliminarily enjoined the enforcement of § 415.071. Only then did the defendants bring to the court's attention that § 415.071 was a regulation of statewide application. Thereafter a three-judge court was convened to pass on the constitutional validity of the regulation.

The periodical has since ceased publication and its editors did not join the media plaintiffs in this litigation.

There is some question as to whether the interview between Hillery and the magazine editors was denied under the authority of § 415.071. Department of Corrections interview policy permits, on a case-by-case basis, meetings between inmate authors and their publishers. The defendants contend that the interview was denied here because the officials made an individualized determination that the meeting was not in fact necessary to effectuate the publication of Hillery's works. Hillery, on the other hand, notes that the editors had indicated to the prison officials that they also wished to discuss with him the conditions in the prison in order to publish an article on that subject. Thus, it appears that the denial was in all likelihood based at least in part on § 415.071.

This policy does not appear to be codified or otherwise expressly articulated in any generally applicable rule or regulation. The statement of visiting privileges for San Quentin State Penitentiar indicates that all visitors must be approved by the corrections officials and must be either 'members of the family or friends of long standing.' It also permits visits by attorneys to their clients. Although nothing is said in this statement about visits by members of the clergy, there is no dispute among the parties that the practice of the Department of Corrections is to permit such visits. There is also no disagreement among the parties that this visitation policy is generally applied by the Department throughout the state corrections system.

It is suggested by the inmate appellees that the use of the mails as an alternative means of communication may not be effective in the case of prisoners who are inarticulate or even illiterate. There is no indication, however, that any of the four inmates before the Court suffer from either of these disabilities. Indeed, the record affirmatively shows that two of the inmates are published writers. Although the complaint was filed as a class action, the plaintiffs never moved the District Court to certify the case as a class action as required by Fed.Rules Civ.Proc. 23(b)(3) and (c). Thus, the short answer to the inmates' contention is that there is neither a finding by the District Court nor support in the record for a finding that the alternative channels of communication are not an effective means for the inmate appellees to express themselves to persons outside the prison.

Even with respect to inmates who may not be literate or articulate, however, there is no suggestion that the corrections officials would not permit such inmates to seek the aid of fellow inmates or of family and friends who visit them to commit their thoughts to writing for communication to individuals in the general public. Cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Merely because such inmates may need assistance to utilize one of the alternative channels does not make it an ineffective alternative, unless, of course, the State prohibits the inmate from receiving such assistance.

The inmates argue that restricting their access to press representatives unconstitutionally burdens their First and Fourteenth Amendment right to petition the government for the redress of grievances. Communication with the press, the inmates contend, provides them with their only effective opportunity to communicate their grievances, through the channel of public opinion, to the legislative and executive branches of the government. We think, however, that the alternative means of communication with the press that are available to prisoners, together with the substantial access to prisons that California accords the press and other members of the public, see infra, at 2808, satisfies whatever right the inmates may have to petition the government through the press.

We also note that California accords prison inmates substantial opportunities to petition the executive, legislative, and judicial branches of government directly. Section 2600 of the California Penal Code permits an inmate to correspond confidentially with any public officeholder. And various rules promulgated by the Department of Corrections explicitly permit an inmate to correspond with the Governor, any other elected state or federal official, and any appointed head of a state or federal agency. Similarly, California has acted to assure prisoners the right to petition for judicial relief. See, e.g., In re Jordan, 7 Cal.3d 930, 103 Cal.Rptr. 849, 500 P.2d 873 (1972); In re Van Geldern, 5 Cal.3d 832, 97 Cal.Rptr. 698, 489 P.2d 578 (1971); In re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 504, 470 P.2d 640 (1970). Section 845.4 of the California Government Code also makes prison officials liable for intentional interference with the right of a prisoner to obtain judicial relief from his confinement.

This policy reflects a recognition that the conditions in this Nation's prisons are a matter that is both newsworthy and of great public importance. As The Chief Justice has commented, we cannot 'continue . . . to brush under the rug the problems of those who are found guilty and subject to criminal sentence. . . . It is a melancholy truth that it has taken the tragic prison outbreaks of the past three years to focus widespread public attention on this problem.' Burger, Our Options are Limited, 18 Vill.L.Rev. 165, 167 (1972). Along the same lines, The Chief Justice has correctly observed that '(i)f we want prisoners to change, public attitudes toward prisoners and ex-prisoners must change. . . . A visit to most prisons will make you a zealot for prison reform.' W. Burger, For Whom the Bell Tolls, reprinted at 25 Record of N.Y.C.B.A. (Supp.) 14, 20, 21 (1970).

As Mr. Chief Justice Warren put the matter in writing for the Court in Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), '(t)here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.'

Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess., Report on the Inspection of Federal Facilities at Leavenworth Penitentiary and the Medical Center for Federal Prisoners 2 Comm.Print 1974).

Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484.

'While Mr. Chief Justice Hughes in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, stated that the First Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth, it has become customary to rest on the broader foundation of the entire Fourteenth Amendment. Free speech and press within the meaning of the First Amendment is, in my judgment, one of the pre-eminent privileges and immunities of all citizens.' Procunier v. Martinez, 416 U.S. 396, 428—429, 94 S.Ct. 1800, 1819, 40 L.Ed.2d 224 (Douglas, J., concurring in judgment).