Jersawitz v. Hanberry, 85-8434

• Decision Date: 10 March 1986
• Docket Number: No. 85-8434,85-8434
• Citation: 783 F.2d 1532
• Parties: 12 Media L. Rep. 1842 Jack JERSAWITZ, Plaintiff-Appellant, v. Jack HANBERRY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1532

783 F.2d 1532

12 Media L. Rep. 1842

Jack JERSAWITZ, Plaintiff-Appellant, v. Jack HANBERRY, et al., Defendants-Appellees.

No. 85-8434.

United States Court of Appeals Eleventh Circuit.

March 10, 1986.

Rehearing and Rehearing En Banc Denied April 17, 1986.

Jeffrey O. Bramlett, Atlanta, Ga., Norman P. Stein, University, Ala., Gary A Ratner, Michael J. Gerhardt, Atlanta, Ga., for plaintiff-appellant.

Robert Tayloe Ross, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Plaintiff Jersawitz, a self-styled independent journalist, sought a declaratory judgment against the Warden and another official of the Atlanta Penitentiary, that a prison regulation which limits interviews with inmates to representatives of the news media whose principal employment is to gather or report news for a radio or television news program of a station holding a Federal Communications Commission license is unconstitutional insofar as it distinguishes between Jersawitz and the defined representatives of the news media. The district court, 610 F.Supp. 535 (1985), upheld the constitutionality of the regulation and granted summary judgment for the defendants. We affirm.

The facts are undisputed. Jersawitz self-produces an editorial-type television show called "Let's Tell It Like It Is" and utilizes a public access channel operated by Prime Cable, Channel 12, Atlanta to project his show. He was not and is not an employee of Channel 12. In fact he has never been employed by anyone to gather or report news. The station is independent from major media organizations and, according to Jersawitz, any citizen can walk in off the street and utilize the facilities of public access free of charge. Channel 12 does not ordinarily supervise the taping of anyone's shows, and it exercises little, if any, control over the programming.

Jersawitz requested permission to interview Father Bourgeois, a critic of United States foreign policy, who was a prisoner confined in the Atlanta Federal Penitentiary. He intended to tape and then replay the interview on his show. The Warden denied Jersawitz access to the penitentiary on the ground that he was not a representative of the news media as that term is defined in the media access regulation established by the Bureau of Prisons, 28 C.F.R. Section 540.2(G)(4). The regulation governs federal prisoners contact with the media and defines representatives of the news media in pertinent part "as ... persons whose principal employment is to gather or report news for ... a radio or television news program of a station holding a Federal Communications license." Jersawitz concedes that he is not a representative of the news media as defined by the regulation.

The district court, in upholding the constitutionality of the regulation, applied the traditional rational relationship test in evaluating the challenge to the regulation, concluding that a compelling state interest analysis proposed by Jersawitz was inappropriate because the case neither involved a suspect class nor implicated fundamental constitutional rights. The court found that the Bureau of Prisons had a rational basis for its classification and granted the Bureau of Prisons' motion for summary judgment.

Jersawitz' basic attack on the constitutionality of the Bureau of Prisons regulation is that it does not give even-handed treatment to journalists, that is, if the Bureau of Prisons admits some journalists to the penitentiary for a face-to-face interview with a certain inmate, it must let all journalists in for the same purpose absent a showing of compelling state interest. Jersawitz contends that the regulation is unconstitutional because it discriminates among journalists based upon their employment status.

At the outset we note that there is nothing in the record to indicate that the difference in classification in the regulation, i.e those journalists who may, and those who may not gain access to the Atlanta Federal Penitentiary, is content based. Nor is there any evidence of bad faith on the part of the government in adopting such a classification.

We need not pause long to dispose of the First Amendment claim. It is now settled without peradventure that newsmen have no constitutional rights of access to prisons or their inmates beyond that afforded the general public. Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). Accepting the holding in these cases as he must, Jersawitz turns to the Equal Protection Clause and argues that Pell and Saxbe are distinguishable from this case because in both of those cases the restrictions to access were on an even-handed basis, and the journalists were therefore no more disabled than the general public. Yet when the...