Aikens v. Jenkins

• Decision Date: 14 April 1976
• Docket Number: No. 75-1430,75-1430
• Parties: Marvin Lee AIKENS et al., Plaintiffs-Appellees, v. Leo D. JENKINS, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 751

534 F.2d 751

Marvin Lee AIKENS et al., Plaintiffs-Appellees, v. Leo D. JENKINS, etc., et al., Defendants-Appellants.

No. 75-1430.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 7, 1975.

Decided April 14, 1976.

Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, Ind., for defendants-appellants.

Harold R. Berk, Russell E. Lovell, II, Indianapolis, Ind., for plaintiffs-appellees.

Before ADAMS ^* and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. ^**

TONE, Circuit Judge.

Plaintiffs, who are inmates of Indiana State Prison, challenge certain statewide regulations promulgated by the Indiana Department of Correction which provide for censorship of literature.

Originally plaintiffs' complaint under 42 U.S.C. § 1983 challenged disciplinary transfers and other prison practices. The challenge to censorship of literature was made by amended complaint shortly before the trial. After hearing the evidence the court, in an opinion reported in 371 F.Supp. 482 (N.D.Ind.1974), resolved several issues in favor of plaintiffs but reserved the censorship issue to await this court's decision in Morales v. Schmidt, 494 F.2d 85 (7th Cir. 1974) (decision on rehearing in banc of a panel decision reported at 489 F.2d 1335 (1973)), which was handed down in March 1974. In April 1974, the Supreme Court decided Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), which established principles that control this case. Following these decisions, the District Court in the case at bar, having conducted a further hearing, held the statewide Department of Correction ("DOC") literature censorship regulations violative of the First Amendment in certain respects. 390 F.Supp. 663 (N.D.Ind.1975). The court also ruled on a policy position paper of the Indiana State Prison and the actual censorship practices at the prison, id., but these rulings are not challenged on appeal.

The case is in a peculiar posture. So far as the record shows, the DOC regulations under review have never been applied or interpreted. The defendant prison officials, in fact, were unaware that these regulations existed until they were unearthed during this proceeding. The censorship practices on which the District Court heard evidence were based on local prison policies, not on the DOC regulations before us. Plaintiffs contend, and the District Court held, that the DOC regulations are invalid on their face. ¹

1.

The standard for a determination of facial invalidity was recently stated in Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, 135 (1975). A statute "should not be deemed facially invalid unless (1) it is not readily subject to a narrowing construction by the state courts, . . . and (2) its deterrent effect on legitimate expression is both real and substantial." Compare NAACP v. Button,371 U.S. 415, 432-433, 83 S.Ct. 328, 337-338, 9 L.Ed.2d 405, 417-418 (1963). Two observations are necessary because of the context in which the Erznoznik test must be applied in the case at bar:

When the first, or narrowing-construction, prong of the test is applied to a statute or a municipal ordinance, the hypothetical narrowing construction would be made by the state court, as the Supreme Court recognized in the quoted passage. In the case at bar, however, we are dealing with administrative regulations which, unlike statutes or municipal ordinances, are designed to be interpreted in the exercise of a prior restraint by the state officers who will administer the regulations. Accordingly, it is they who will be providing the narrowing construction, if one is to be provided. Theoretically it should perhaps be immaterial which instrumentality of the state has the responsibility of interpreting the challenged regulation. The likelihood of a reasonable interpretation is normally to be presumed. We cannot fail to observe, however, that the prison officials who will be applying the regulations under review did not even know the regulations existed until this litigation was commenced, and that those officials interpreted the local prison policies of which they were aware to exclude, inter alia, Dostoevski's The Gambler, Gibran's The Prophet, and all publications of Bantam Books.

Under the second prong of the Erznoznik test, which refers to the deterrent effect on legitimate expression, attention may be focused on the conduct of either the censors or the prison inmates. Since the facet of the First Amendment protection under review is the right to receive information, see Procunier v. Martinez, supra, 416 U.S. at 408-409, 94 S.Ct. at 1808-1809, 40 L.Ed.2d at p. 237 and Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542, 549 (1969), it is appropriate to consider the effect which a restrictive regulation, through its impact on the censors, may have on the flow of information to the persons whose right is asserted. The regulation may also affect a prisoner's own conduct. He may fear that an attempt to obtain the publication will result in some form of official reprisal, direct or indirect, and therefore he may be inhibited from ordering or subscribing for the material. Cf. Lamont v. Postmaster General, 381 U.S. 301, 307, 85 S.Ct. 1493, 1496, 14 L.Ed.2d 398, 402 (1965).

2.

What we have said also suggests that the plaintiff inmates have standing to challenge the regulations on their face, a proposition defendants do not question. The standard for justiciability is whether the plaintiffs are "immediately in danger of sustaining some direct injury as the result of (the regulations') enforcement, and not merely that (they suffer) in some indefinite way in common with people generally," Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078, 1085 (1923); see also O'Shea v. Littleton, 414 U.S. 488, 493-494, 94 S.Ct. 699, 674-675, 38 L.Ed.2d 674, 681-682 (1974); or whether the facts "show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment," Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 829 (1941), quoted in Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113, 117 (1969). The enforcement of the challenged regulations poses a threat of sufficient immediacy and injury to justify the relief which is sought. See 6A Moore's Federal Practice P 57.18(2), at p. 57-184 (2d ed. 1975).

3.

Any doubt remaining after Procunier v. Martinez, supra, that prisoners, as distinguished from persons seeking to communicate with them, have rights under the First Amendment could not survive Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501 (1974), in which the Court said:

"(A) prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system . . . ."

It is also clear that the First Amendment right of prisoners extends to published literature. Although Procunier v. Martinez dealt with censorship of prisoner's mail, we indicated, shortly after it was decided, our view that the standards it prescribes are applicable to censorship of published materials. Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974). ² Other courts have agreed. Morgan v. LaVallee, 526 F.2d 221, 224-225 (2d Cir. 1975); McCleary v. Kelly, 376 F.Supp. 1186, 1190-1191 (M.D.Pa.1974); The Luparar v. Stoneman, 382 F.Supp. 495, 498-499 (D.Vt.1974). See also Burke v. Levi, 391 F.Supp. 186, 190-191 (E.D.Va.1975); Battle v. Anderson, 376 F.Supp. 402, 425-426 (E.D.Okla.1974).

The First Amendment right to receive information and ideas is more limited for prisoners, however, than for other members of society. "First Amendment guarantees must be 'applied in light of the special characteristics of the . . . environment.' " Procunier v. Martinez, supra, 416 U.S. at 409-410, 94 S.Ct. at 1809, 40 L.Ed.2d at 238, quoting from Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731, 737 (1969). The burden of showing such special characteristics justifying restrictions on First Amendment rights is on those who seek to impose the restrictions. To justify a prison censorship regulation, prison officials must show that it "furthers one or more of the substantial governmental interests of security, order, and rehabilitation." Procunier v. Martinez, supra, 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240. In addition, "the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. ³

4.

The Indiana Department of Correction regulations begin with a recognition that inmates should be allowed "access to periodicals to the greatest degree consistent with institutional goals, and without impairing internal discipline and security." The regulations then proceed to declare that certain described "types of periodicals constitutes (sic) a clear and present danger of a breach of prison discipline or security, or some other substantial interference with the orderly functioning of the institution or the rehabilitation of its inmates." Then follow descriptions of the "types of periodicals," classified in three categories, which are viewed as meeting the "clear and present danger" test.

We pause to note that, as the District Court correctly recognized, 390 F.Supp. at 667, Procunier v. Martinez does not establish a clear and present danger criterion. We judge the regulations before us by the criteria prescribed in that case.

a.

The first censorship regulation to be reviewed is...