494 F.2d 994 (D.C. Cir. 1974), 72-1362, Washington Post Co. v. Kleindienst

Docket Nº:72-1362.
Citation:494 F.2d 994
Party Name:The WASHINGTON POST COMPANY et al. v. Richard G. KLEINDIENST, Acting Attorney General of the United States, et al., Appellants.
Case Date:February 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 994

494 F.2d 994 (D.C. Cir. 1974)

The WASHINGTON POST COMPANY et al.

v.

Richard G. KLEINDIENST, Acting Attorney General of the United States, et al., Appellants.

No. 72-1362.

United States Court of Appeals, District of Columbia Circuit.

February 21, 1974

Argued July 24, 1973.

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Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellants. John A. Terry, Michael A. Katz, and Robert D. Zsalman, Asst. U.S. Attys., also entered appearances for appellants.

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Joseph A. Califano, Jr., Washington, D.C., with whom Charles H. Wilson, Jr., and Richard M. Cooper, Washington, D.C., were on the brief, for appellees.

Melvin L. Wulf, New York City, and Hope Eastman, Washington, D.C., filed a brief on behalf of Tom Wicker, et al., as amici curiae urging affirmance. Michele Hermann, New York City, also entered an appearance for Tom Wicker, et al., as amici curiae.

Before McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

This appeal by the Government from a declaration and order of the District Court presents the question of the extent to which press communication with federal prisoners can be restricted without falling afoul of the First Amendment. It arises by reason of the issuance and implementation by the Federal Bureau of Prisons of its Policy Statement 1220.1A, which categorically forbids personal interviews by newsmen of all prisoners in all of the correctional institutions administered by the Bureau. Because of the great respect which the federal judiciary entertains for the Bureau by reason of its long and continuous history of distinguished and enlightened leadership, both the District Court and ourselves have been at special pains to assure the development of an evidentiary record adequately illuminative of the important issue to be resolved. By reference to that record, and the supportable findings and conclusions carefully distilled therefrom by the District Court, we affirm the action taken by it. That action is essentially to require that the Bureau reformulate its policy in less absolute terms, thereby reducing the unacceptable degree of tension which now exists between the policy and the First Amendment, and striking a justifiable balance between the administrative needs of the Bureau and the constitutional guarantee of the public's right to know about the public business through the functioning of a free press.

I

Appellees are a major newspaper and one of its reporters. In March of 1972 the reporter requested of the Director of the Bureau permission to conduct interviews in the federal prisons at Lewisburg, Pennsylvania and Danbury, Connecticut. The inmates he sought to interview were members of inmate negotiating committees that had been formed during work stoppages during the prior month, as well as certain other inmates who had written him to complain of their treatment. Relying on Policy Statement 1220.1A, the Director rejected the requests. 1

Suit was then filed in the District Court challenging these denials and the Policy Statement on which they were based. The District Court declared that the Bureau's Policy Statement, insofar as it flatly prohibited all press interviews, violated the First Amendment; and it ordered the Bureau to stop enforcing that policy, and, pending its modification, to proscribe only those requested press interviews that are likely immediately and directly to cause serious administrative or disciplinary problems. Washington Post Co. v. Kleindienst, 357 F.Supp. 770, 779 (D.D.C. 1972). 2

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The Supreme Court stayed the District Court's order pending resolution of the appeal to this court. 406 U.S. 912, 92 S.Ct. 1761, 32 L.Ed.2d 112 (1972). After oral argument and while the appeal was under submission, we remanded the case to the District Court, suggesting the desirability of expanding the record by further evidentiary hearings in order that findings of fact could be made on specified issues, and the conclusions of law reexamined in light of the more developed factual record and the intervening Supreme Court discussion of press freedoms in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which had been pressed upon us by the Government. 155 U.S. 283, 477 F.2d 1168 (D.C.Cir.1972). 1972). On remand, the District Court held further evidentiary hearings, enlarged its findings of fact, and examined Branzburg and other recent decisions urged upon it by the parties. The District Court reaffirmed its initial decision, Washington Post II, 357 F.Supp. 779 (D.D.C.1972), and the case returned to this court where it was supplementally briefed and orally argued a second time.

The Bureau's policy governing press interviews differs significantly from that controlling the visitation rights of other persons. In general, inmates' families, their attorneys, and religious counsel are accorded liberal visitation privileges. Even friends of inmates are allowed to visit, although their privileges appear to be somewhat more limited. The testimony suggests that the federal institutions follow a rather liberal policy of granting visitation privileges whenever possible. 3

Policy Statement 1220.1A, promulgated on February 11, 1972, establishes the Bureau policy controlling all means of news gathering within the federal institutions. Under that policy, inmates are permitted to correspond freely with members of the news media. The correspondence is funneled through sealed prisoners' mailboxes provided for the purpose of assuring that no censorship occurs. Likewise, representatives of the news media are permitted to initiate or follow up correspondence with inmates of their choosing, and incoming letters are only inspected to assure that they do not contain contraband or materials that would incite illegal conduct. 4 Additionally, the Bureau's proclaimed policy is to encourage visitation by representatives of the news media, by advance appointment, for the purpose of preparing reports concerning institutional facilities, programs, and activities. 5

The Bureau's policy governing private press interviews-- the focus of this litigation-- is set forth in the first two sentences of paragraph 4(b)(6) of the Policy Statement:

Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, a conversation may be permitted with inmates whose identity is not to be made public, if it

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is limited to the discussion of institutional facilities, programs and activities.

The Bureau's distinction between an 'interview' and a 'conversation' was explored in the evidentiary hearings and reflected in the District Court's findings of fact. Essentially, the Bureau considers a 'conversation' to be a spontaneous discussion with inmates whom a newsman might randomly encounter during a supervised inspection tour of the institution. Such conversations are limited in time to approximately five to ten minutes, and are restricted by the terms of the Policy Statement to the discussion of 'institutional facilities, programs and activities.' Additionally, reporters who rely on information received in a 'conversation' are requested not to name the inmates with whom they spoke. By contrast, the Bureau considers an 'interview' to be a private, scheduled, face-to-face discussion with a designated inmate that lasts a sufficient time to permit extensive discourse. 6

The Policy Statement's prohibition against interviews is total. They are to be denied regardless of the characteristics and record of the inmate; his desire to be interviewed; and the conditions prevailing at the institution at the time the interview is sought. Moreover, the interview ban applies with equal force to all federal institutions, minimum as well as maximum security, and even precludes interviews with offenders who are employed in business establishments or attending schools pursuant to community release programs. 7

II

Appellees assert a First Amendment right of their own to gather and report news, together with a parallel First Amendment right of the public to have them serve that function, as the basis for relief from the strictures of the Policy Statement. 8 While acknowledging that the Bureau has provided some scope for gathering news in the federal institutions, appellees maintain that it is inadequate, and that person-to-person interviews are essential to the effective performance of their journalistic function in the prison setting.

The First Amendment rights of the press are, of course, a function of the paramount right of the public to information necessary to enable it to assert ultimate control over the political process. 9 Although this is by now axiomatic, it is particularly important to be borne in mind in considering the regulation of press access to information concerning the administration of the correctional system. Courts must be alert to assure that the diminution of information

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in this area-- one of increasing public concern-- is no greater than is necessary for the protection of the legitimate societal interests in the effective administration of those systems.

Right of access by the press to newsworthy events is necessarily antecedent to its First Amendment right to publish. Obviously, excessive limitations on the ability to gather information would render the freedom to publish a hollow guarantee. This concept is not novel. The Supreme Court's observation in Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), that the 'right to speak and publish does not carry with...

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