Hillery v. Procunier

• Decision Date: 07 January 1974
• Docket Number: No. C-71-2150 SW.,C-71-2150 SW.
• Citation: 364 F. Supp. 196
• Parties: Booker T. HILLERY, Jr., et al., Plaintiffs, v. Raymond K. PROCUNIER et al., Defendants.
• Court: U.S. District Court — Northern District of California

364 F. Supp. 196

Booker T. HILLERY, Jr., et al., Plaintiffs, v. Raymond K. PROCUNIER et al., Defendants.

No. C-71-2150 SW.

United States District Court, N. D. California.

August 16, 1973.

Probable Jurisdiction Noted January 7, 1974.

Richard M. Doctoroff, Patti Roberts, San Francisco, Cal., for plaintiffs.

John T. Murphy, George R. Nock, Deputy Attys. Gen., State of California, San Francisco, Cal., for defendants.

Before HAMLIN, Circuit Judge, and EAST and WILLIAMS, District Judges.

Probable Jurisdiction Noted January 7, 1974. See 94 S.Ct. 862.

MEMORANDUM OF OPINION

SPENCER WILLIAMS, District Judge:

At issue here is the constitutionality of § 415.071 of the California Department of Corrections Manual, which provides:

"Press and other media interviews with specific individual inmates will not be permitted."

I.

Plaintiffs seek injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. § 1983. Jurisdiction is conferred upon this court under Title 28 U. S.C. §§ 1343(3), 1343(4) and 2201.

II.

Plaintiffs Hillery, Spain, Bly and Guile are prisoners at San Quentin State Penitentiary. Editors of Earth Magazine wish to interview Hillery. Plaintiffs Pell, Sebal, and Jacobs are, respectively, free lance, newspaper, and television journalists, each of whom wishes to interview one of the three other inmate plaintiffs. Each of the inmate plaintiffs has affirmatively consented to an interview; each request was denied by the Warden on the basis of § 415.071. None of the prisoner plaintiffs has been alleged by the defendants to have presented disciplinary problems; nor have defendants alleged a proclivity of these media plaintiffs to create security risks.

Defendant Procunier is the Director of the State Department of Corrections. Defendant Nelson is the Warden of San Quentin; defendants Park and O'Brien are Associate Wardens.

III.

This case has its humble origins in a complaint drafted by a lay prisoner serving time at San Quentin. Shortly after the action was filed the court appointed counsel and the complaint was amended in March 1972 to add several other prisoners and media representatives as plaintiffs. The State filed a motion to dismiss for failure to state a claim upon which relief can be granted. The matter was thoroughly briefed and the court, on September 29, 1972, preliminarily enjoined the enforcement of § 415.071 and ordered defendants to submit proposed revisions to the regulations comporting to the standards set forth in the court's memorandum of decision. The State immediately moved for vacation of the order for lack of jurisdiction, arguing, for the first time since the initiation of the lawsuit, that since the regulation in question was applied by the Department of Corrections uniformly throughout the entire state penal system, the matter must be adjudicated by a three-judge court. Title 28 U.S.C. § 2281; Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968), cert. denied, 393 U.S. 1092, 89 S.Ct. 854, 21 L.Ed.2d 783 (1969).¹

Plaintiffs conceded that given the scope of application of § 415.071 the injunction was invalid. They urged the court to grant a temporary restraining order pending a final disposition by the three-judge panel. Upon affidavits submitted on behalf of the plaintiffs the court found that plaintiffs would suffer irreparable harm if the relief were not granted and issued the temporary restraining order under the same terms as provided in the original injunction. Title 28 U.S.C. § 2284(3).

Interim regulations were formulated by the prison officials and implemented in November 1973. None of the sought-after interviews took place, however, and plaintiffs subsequently moved the court to hold defendants in contempt for failure to comply with the order. Defendants moved the order be dissolved. Both motions were denied in light of the impending hearing by this court.

The panel convened February 22 to determine the constitutionality of § 415.071 as originally worded. The instant ruling is based on the arguments and testimony offered on that date and the memoranda of law and affidavits submitted by the parties.

IV.

Prior to the implementation of § 415.071 the Department operated upon a laisse-faire policy with respect to press interviews with inmates. Until the late 1960s such interviews were relatively infrequent and resulted in little burden upon or danger to the institutions. With the rise of manifested discontent within the prisons and the consequent arousal of public concern and curiosity, however, the number of requests for media interviews increased substantially. The Department accommodated this influx despite the accompanying increased demands on its personnel and facilities. But beyond administrative hardships, the escalation of media access and exposure also created, in the Department's opinion, the phenomenon of the "prison celebrity" or "big wheel" — the prisoner who, through his writings and media coverage, gained a certain notoriety both outside and inside the institution. The influence of the "celebrity" over other inmates is looked upon by the Department as an added potential threat to the security and discipline within the prison.

It was against this background that the tragic events of August 21, 1971 took place. During 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.

The regulation does not effect an absolute ban on all media interviews with inmates. The practice under the rule is to allow media representatives to enter the prison and, aided by the Warden, select at random interviewees from the prison population.² Thus, media representatives are able to interview an inmate, but unable to select a particular inmate. Similarly, a prisoner who happens to be randomly selected can express himself personally to the newsman or journalist, but cannot initiate an interview himself.³

V.

The media plaintiffs herein and amicus curiae⁴ argue that § 415.071 is violative of not only the prisoners' First Amendment rights, but also the press'. The court disagrees. It has been made clear in recent decisions by the Supreme Court that the press enjoys no greater right to access to news sources than the average citizen. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1971) the Court held that newsmen were not immune to grand jury solicitation of or information derived from the newsman's confidential sources. While the facts of that case are substantially different than those presented here, the Court unequivocally dismissed any notion that the First Amendment bestowed upon newsmen special news-gathering privileges. Reviewing past decisions on the subject⁵ the Court observed:

"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." 408 U.S. at 684, 92 S.Ct. at 2657.

As in Branzburg, the present case ". . . involves no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold." 408 U.S. at 681, 92 S.Ct. at 2656.

This rationale was followed by the Ninth Circuit in the recent decision in Seattle-Tacoma Newspaper Guild, Local #82 v. Parker, 480 F.2d 1062 (9th Cir. 1973). In that case media plaintiffs and prisoner intervenors challenged a regulation implemented at McNeil Island Federal Penitentiary which prohibited press interviews with willing prisoners. With respect to the First Amendment claims of the media representatives, the court held that under Zemel v. Rusk, supra, the "`. . . the right to speak and publish does not carry with it the unrestrained right to gather information'" and that the "disruptive influences" at McNeil "outweigh the uncertain burden on news reporting that allegedly results from prohibiting prisoner interviews." 480 F.2d at 1066-1067.

The Seattle-Tacoma ruling with respect to the media claims controls here. We note in passing, however, that cases cited by plaintiffs emanating from other jurisdictions apparently arriving at an opposite conclusion are distinguishable. In Washington Post v. Kleindienst, 357 F.Supp. 770 (D.D.C. 1972),⁶ for example, the regulation held unconstitutional barred all interviews with inmates at federal penitentiaries in Connecticut and Pennsylvania. The court held that "a continuing flat ban against press interviews of any prisoner, at any time, in any institution, is on its face arbitrary." Washington Post I at p. 773. In that context, it is apparent the press was not being granted a special right of access to prisoners, but simply some access. Even under § 415.071 as it stood before today's ruling the press was given the freedom to enter the California institutions and interview at random, and it is the conclusion of this court that the even broader access afforded prisoners by today's ruling sufficiently protects whatever rights the press may have with respect to interviews with inmates.

VI.

We turn next to the prisoners' rights as they are affected by § 415.071. Case law dealing with the constitutionality of prison regulations has proliferated in recent years. From those decisions the court discerns three axioms within whose bounds the current analysis must take place. 1) It is clear that "lawful 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, 68 S.Ct. 1049, 92 L. Ed. 1356 (1948).⁷ 2) Further, prison officials are properly given a great degree of discretion in the administration of penal institutions. Stroud v. Swope, 187 F.2d 850 (9th Cir. 1951); ...