Jersawitz v. Hanberry, Civ. A. No. C83-2202A.

• Decision Date: 29 April 1985
• Docket Number: Civ. A. No. C83-2202A.
• Citation: 610 F. Supp. 535
• Parties: Jack JERSAWITZ, Plaintiff, v. Jack HANBERRY, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

610 F. Supp. 535

Jack JERSAWITZ, Plaintiff, v. Jack HANBERRY, et al., Defendants.

Civ. A. No. C83-2202A.

United States District Court, N.D. Georgia, Atlanta Division.

April 29, 1985.

Joseph M. Beck and Norman P. Stein, Jeffrey O. Bramlett, Bondurant, Miller, Hishon & Stephenson, Atlanta, Ga., for plaintiff.

Barbara V. Tinsley, Asst. U.S. Atty., Atlanta, Ga., for defendants.

ORDER

ROBERT H. HALL, District Judge.

This action is presently before the court on the parties' cross-motions for summary judgment. Federal jurisdiction is predicated upon the existence of a federal question, 28 U.S.C. § 1331 (West Supp.1984). For the reasons stated herein, defendants' motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED.

FACTUAL BACKGROUND

The parties to this action have stipulated that summary judgment is appropriate because the facts are not in dispute. On October 7, 1983, plaintiff requested permission to interview a particular inmate who was temporarily confined at the Atlanta Federal Penitentiary. Plaintiff sought the interview for use on a self-produced television show called "Let's Tell It Like It Is," which airs via a public access channel provided by Cable Atlanta. Plaintiff is not employed by Cable Atlanta nor is he subject to its control or supervision; instead he considers himself an independent journalist.

Warden Hanberry of the Atlanta Federal Penitentiary denied plaintiff's request to interview the specified inmate. The Warden based this denial on the fact that plaintiff did not qualify as a "representative of the news media" under the applicable Bureau of Prisons' definition, 28 C.F.R. § 540.2(b) (1984). Plaintiff admits that he is not a "representative of the news media" as defined by the regulation.

The Bureau of Prisons' regulations governing federal prisoners' contact with the media are embodied in 28 C.F.R. § 540.60, et seq. (1984). Those regulations permit, under certain conditions, "representatives of the news media" to conduct interviews with prisoners incarcerated in federal penal institutions, including the Atlanta Penitentiary. The regulations define "representatives of the news media" as follows:

Persons whose principal employment is to gather or report news for:

1) A newspaper which qualifies as a general circulation newspaper in the community in which it is published. A newspaper is one of "general circulation" if it circulates among the general public and if it publishes news of a general character of general interest to the public such as news of political, religious, commercial, or social affairs. A key test to determine whether a newspaper qualifies as a "general circulation" newspaper is to determine whether the paper qualifies for the purpose of publishing legal notices in the community in which it is located or the area to which it distributes;

2) A news magazine which has a national circulation and is sold by newsstands and by mail subscription to the general public;

3) A national or international news service; or

4) A radio or television news program of a station holding a Federal Communications Commission license.

28 C.F.R. § 540.2(b).

Plaintiff originally brought this action seeking a mandamus ordering the warden to admit him to the Atlanta Penitentiary for the purpose of interviewing the inmate. During the pendency of the proceedings, the inmate was transferred from the Atlanta Penitentiary to his designated place of confinement. The court therefore ruled that the mandamus issue was moot.

Subsequently plaintiff filed an amended complaint in which he seeks the following: (1) a declaratory judgment that 28 C.F.R. § 540.60 et seq is "unconstitutional insofar as it distinguishes between plaintiff and `representatiaves of the media'" (Plaintiff's Complaint, ¶ 1); (2) an order permanently enjoining defendants from denying plaintiff the privilege of interviewing prisoners at the Atlanta Penitentiary for the reason that he is not a "representative of the media"; and (3) an order requiring the defendants to either bring the inmate to Atlanta for an interview or to pay to transport plaintiff to the inmate's place of confinement for an interview. By order dated February 6, 1985, the court granted plaintiff leave to file the brief of the Atlanta Press Club, an amicus curiae.

DISCUSSION

As noted earlier, the parties have agreed that summary judgment is appropriate in this case. The issue before the court, therefore, is whether the prison regulations, 28 C.F.R. § 540.60 et seq., are unconstitutional, as plaintiff alleges.

Plaintiff has alleged that the regulations violate both the First and the Fifth Amendments to the United States Constitution. Specifically, plaintiff alleges that the regulations violate the First Amendment "by denying plaintiff a privilege extended to segments of the general public, to wit the privilege of `representatives of the news media' to interview prisoners...." and by "distinguishing and classifying among different categories of the press...." (Plaintiff's Complaint, Count 1, ¶¶ a and b). While these allegations purport to state a First Amendment violation, it appears to the court that they more correctly allege an equal protection violation. The Supreme Court has held that restrictions on media access to prisons do not abridge the First Amendment's guarantee of freedom of the press. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1973); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). In any event this case, unlike Pell and Saxbe, does not present a case of prison regulations totally prohibiting the press from interviewing prisoners, instead the question in this case is whether the regulations' classifications are constitutionally valid. For this reason the court will focus on plaintiff's claims of a Fifth Amendment violation.

In Count II of his complaint, plaintiff alleges that the regulations "violated the Due Process Clause of the Fifth Amendment to the United States Constitution by granting privileges to selected categories of the media while denying them to plaintiff." In his motion for summary judgment plaintiff contends that the government must have a compelling state interest in order to validate the classifications. This standard is simply not the correct standard by which to judge the regulations. As the Atlanta Press Club correctly notes in its amicus brief, the proper standard by which to measure the regulations is whether the government has a rational basis for its actions. The "compelling state interest" analysis only arises in cases involving government action which implicates a constitutional right or affects a suspect class. Clearly the class to which plaintiff belongs,...