417 U.S. 843 (1974), 73-1265, Saxbe v. Washington Post Co.

Docket Nº:No. 73-1265
Citation:417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514
Party Name:Saxbe v. Washington Post Co.
Case Date:June 24, 1974
Court:United States Supreme Court

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417 U.S. 843 (1974)

94 S.Ct. 2811, 41 L.Ed.2d 514



Washington Post Co.

No. 73-1265

United States Supreme Court

June 24, 1974

Argued April 17, 1974




The Policy Statement of the Federal Bureau of Prisons prohibiting personal interviews between newsmen and individually designated inmates of federal medium security and maximum security prisons does not abridge the freedom of the press that the First Amendment guarantees, Pell v. Procunier, ante p. 817, since it "does not deny the press access to sources of information available to members of the general public," but is merely a particularized application of the general rule that nobody may enter the prison and designate an inmate whom he would like to visit unless the prospective visitor is a lawyer, clergyman, relative, or friend of that inmate. Pp. 846-850.

161 U.S.App.D.C. 75, 494 F.2d 994, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, ante p. 836. POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 850.

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STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The respondents, a major metropolitan newspaper and one of its reporters, initiated this litigation to challenge the constitutionality of ¶ 4b(6) of Policy Statement 1220. lA of the Federal Bureau of Prisons.1 At the time that the case was in the District Court and the Court of Appeals, this regulation prohibited any personal interviews between newsmen and individually designated federal prison inmates. The Solicitor General has informed the Court that the regulation was recently amended "to permit press interviews at federal prison institutions that can be characterized as minimum security."2 The general prohibition of press interviews with inmates remains in effect, however, in three-quarters of the federal prisons, i.e., in all medium security and maximum security institutions, including the two institutions involved in this case.

In March, 1972, the respondents requested permission from the petitioners, the officials responsible for administering federal prisons, to conduct several interviews with specific inmates in the prisons at Lewisburg, Pennsylvania, and Danbury, Connecticut. The petitioners denied permission for such interviews on the authority of Policy Statement 1220.1A. The respondents thereupon commenced this suit to challenge these denials and the regulation on which they were predicated. Their essential contention was that the prohibition of all press interviews

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with prison inmates abridges the protection that the First Amendment accords the newsgathering activity of a free press. The District Court agreed with this contention, and held that the Policy Statement, insofar as it totally prohibited all press interviews at the institutions involved, violated the First Amendment. Although the court acknowledged that institutional considerations could justify the prohibition of some press-inmate interviews, the District Court ordered the petitioners to cease enforcing the blanket prohibition of all such interviews and, pending modification of the Policy Statement, to consider interview requests on an individual basis and "to withhold permission to interview . . . only where demonstrable administrative or disciplinary considerations dominate." 357 F.Supp. 770, 775 (DC 1972).

The petitioners appealed the District Court's judgment to the Court of Appeals for the District of Columbia Circuit. We stayed the District Court's order pending the completion of that appeal, sub nom. Kleindienst v. Washington Post Co., 406 U.S. 912 (1972). The first time this case was before it, the Court of Appeals remanded it to the District Court for additional findings of fact and particularly for reconsideration in light of this Court's intervening decision in Branzburg v. Hayes, 408 U.S. 665 (1972). 155 U.S.App.D.C. 283, 477 F.2d 1168 (1972). On remand, the District Court conducted further evidentiary hearings, supplemented its findings of fact, and reconsidered its conclusions of law in light of Branzburg and other recent decisions that were urged upon it. In due course, the court reaffirmed its original decision, [94 S.Ct. 2813] 357 F.Supp. 779 (DC 1972), and the petitioners again appealed to the Court of Appeals.

The Court of Appeals affirmed the judgment of the District Court. It held that press interviews with prison inmates could not be totally prohibited as the Policy

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Statement purported to do, but may

be denied only where it is the judgment of the administrator directly concerned, based on either the demonstrated behavior of the inmate, or special conditions existing at the institution at the time the interview is requested, or both, that the interview presents a serious risk of administrative or disciplinary problems.

161 U.S.App.D.C. 75, 87-88, 494 F.2d 994, 1006-1007 (1974). Any blanket prohibition of such face-to-face interviews was held to abridge the First Amendment's protection of press freedom. Because of the important constitutional question involved, and because of an apparent conflict in approach to the question between the District of Columbia Circuit and the Ninth Circuit,3 we granted certiorari. 415 U.S. 956 (1974).

The policies of the Federal Bureau of Prisons regarding visituations to prison inmates do not differ significantly from the California policies considered in Pell v. Procunier, ante, p. 817. As the Court of Appeals noted,

inmates' families, their attorneys, and religious counsel are accorded liberal visituation privileges. Even friends of inmates are allowed to visit, although their privileges appear to be somewhat more limited.

161 U.S.App.D.C. at 78, 494 F.2d at 997. Other than members of these limited groups with personal and professional ties to the inmates, members of the general public are not permitted under the Bureau's policy to enter the prisons and interview consenting inmates. This policy is applied with an even hand to all prospective visitors, including newsmen, who, like other members of the public, may enter the prisons to visit friends or family members. But, again like members of the general public, they may not enter

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the prison and insist on visiting an inmate with whom they have no such relationship. There is no indication on this record that Policy Statement 1220.1A has been interpreted or applied to prohibit a person, who is otherwise eligible to visit and interview an inmate, from doing so merely because he is a member of the press.4

Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there. Indeed, journalists are given access to the prisons and to prison inmates that, in significant respects exceeds that afforded to members of the general public. For example, Policy Statement 1220.1A permits press representatives to tour the prisons and to photograph any prison facilities.5 During such tours, a newsman is permitted to conduct brief interviews with any inmates he might encounter.6 In addition, newsmen and inmates are permitted virtually unlimited written correspondence with each other.7 Outgoing correspondence from inmates to press representatives is neither censored nor inspected. Incoming mail from press representatives is inspected only [94 S.Ct. 2814] for contraband or statements inciting illegal action. Moreover, prison officials are available to the press and are required by Policy Statement 1220.1A to "give all possible assistance" to press representatives "in providing

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background and a specific report" concerning any inmate complaints.8

The respondents have also conceded in their brief that Policy Statement 1220.1A "has been interpreted by the Bureau to permit a newsman to interview a randomly selected group of inmates." As a result, the reporter respondent in this case was permitted to interview a randomly selected group of inmates at the Lewisburg prison. Finally, in light of the constant turnover in the prison population, it is clear that there is always a large group of recently released prisoners who are available to both the press and the general public as a source of information about conditions in the federal prisons.9

Thus, it is clear that Policy Statement 1220.1A is not part of any attempt by the Federal Bureau of Prisons to conceal from the public the conditions prevailing in federal prisons. This limitation on prearranged press interviews with individually designated inmates was motivated by the same disciplinary and administrative considerations that underlie § 115.071 of the California Department of Corrections Manual, which we considered in Pell v. Procunier and Procunier v. Hillery, ante, p. 817. The experience of the Bureau accords with that of the California Department of Corrections, and suggests that the interest of the press is often

concentrated on a relatively small number of inmates who, as a result, [become] virtual "public figures" within the prison society and gai[n] a disproportionate degree of notoriety and influence among their fellow inmates.

Pell, ante, at 831-832. As a result, those inmates who are conspicuously publicized because of

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their repeated contacts with the press tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison.

The District Court and the Court of Appeals sought to meet this problem by decreeing a selective policy whereby prison officials could deny interviews likely to lead to disciplinary problems. In the...

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