McMillan v. Carlson

• Decision Date: 31 December 1973
• Docket Number: Civ. A. No. 72-2551-M.
• Parties: George McMILLAN, Plaintiff, v. Norman CARLSON, Director, Federal Bureau of Prisons, Defendant.
• Court: U.S. District Court — District of Massachusetts

369 F. Supp. 1182

George McMILLAN, Plaintiff, v. Norman CARLSON, Director, Federal Bureau of Prisons, Defendant.

Civ. A. No. 72-2551-M.

United States District Court, D. Massachusetts.

December 31, 1973.

Herman Schwartz, Amherst, N. Y., John Reinstein, Mass. Civil Liberties Union, Boston, Mass., for plaintiff.

James N. Gabriel, U. S. Atty., Edward J. Lee, Asst. U. S. Atty., for defendant.

MEMORANDUM

FRANK J. MURRAY, District Judge.

The plaintiff, George McMillan, a professional writer-researcher, brings this action against the Director of the Federal Bureau of Prisons, seeking declaratory and injunctive relief from alleged violations of his First and Fifth Amendment rights under the United States Constitution. Jurisdiction of the court is alleged under 28 U.S.C. § 1331 (federal question), § 1361 (action in the nature of mandamus), and §§ 2201, 2202 (declaratory and further relief).

The allegations of the complaint are in brief that plaintiff has a contract with a publisher to write the biography of James Earl Ray and has received substantial advances on anticipated royalties from expected sales of the book; that plaintiff has requested permission from the Warden of the United States Penitentiary at Leavenworth, Kansas, to interview John Larry Ray, an inmate at the Penitentiary, who is the brother of James Earl Ray, for the purpose of writing the biography, and that, although John Larry Ray consented to the interview, the request was refused because of the Bureau's long-standing prohibition against personal interviews.

After plaintiff moved for a preliminary injunction to enjoin defendant from denying plaintiff's request for a face-to-face interview with John Larry Ray, plaintiff filed his motion for summary judgment under Rule 56. Defendant opposed the motion and filed a motion to dismiss under Rule 12(b) and, in the alternative, a motion for summary judgment under Rule 56. In support of their respective motions the parties filed memoranda of law and affidavits. Thereafter a stipulation was entered into and filed giving defendant time to file additional documents. After the court called for a conference of the parties to settle the record, the parties stipulated to the material facts in the dispute arising upon the complaint, and filed with the court on November 19, 1973 a statement of undisputed facts. It is this statement that settles the facts before the court.

I

It is not disputed that plaintiff is a writer engaged in writing the biography of James Earl Ray, and that by letters dated January 28, 1972, April 8, 1972 and May 15, 1972 plaintiff requested the Bureau to grant permission for a face-to-face interview at Leavenworth Penitentiary with the inmate John Larry Ray, brother of James Earl Ray the convicted killer of Martin Luther King. After John Larry Ray at his own request was transferred to the Marion Penitentiary, plaintiff requested permission to interview him there, and that request was denied August 21, 1973. Although John Larry Ray has consented to the interview, the defendant, as Director of the Bureau of Prisons, has denied the several requests.

The Bureau's over-all policy of visitations is set forth in Policy Statement No. 7300.4A, April 24, 1972,¹ whereunder each institution is responsible for development of its own procedures and regulations, within guidelines established by the Bureau. Under the Bureau's policy, visiting privileges are extended only to (a) members of the immediate family, (b) other relatives, (c) close friends, and (d) authorized visits from such persons as clergymen, former or prospective employers, sponsors and parole advisers. In a recent policy statement (Policy Statement No. 1220.1A, February 11, 1972) entitled "Inmate Correspondence with Representatives of the Press and News Media" the Bureau prohibited interviews with inmates by news reporters.² The Bureau has determined that although authors are not specifically referred to in the policy statement applicable to representatives of the press and news media, authors should likewise be prohibited from face-to-face interviews with inmates at maximum security institutions such as Leavenworth and Marion. There have been difficulties caused by visitors at such institutions, including difficulties of smuggling of contraband, and misrepresentations by persons seeking visitor's privileges apparently to plan or further illegal activities.

The defendant's denials of plaintiff's requests for personal interviews rest solely on the policy of the Bureau to prohibit interviews by authors and on the visiting regulations applicable to Leavenworth and Marion. Such denials do not depend at all on any facts relating to the inmate Ray or to his institutional record. The Bureau is willing, and has so advised the plaintiff, that plaintiff may correspond by mail with Ray and thereby interrogate him on matters relative to the biography and submit chapters of the book for Ray's comments.

II

It is contended by the plaintiff that as an author contributing to the flow of information to the public he is engaged in the news-gathering function, and is thereby entitled to the First Amendment rights and protections which extend to a newsgatherer. Plaintiff also argues that communication with the inmate by correspondence is not an appropriate alternative to a personal interview as a means of gathering information, because of the inmate's inadequate education which prevents him from expressing his ideas in writing. His argument proceeds that since his right to gather information for the biography³ is protected by the First Amendment, the Bureau's policy and determination which prohibits the face-to-face interview with John Larry Ray is an unconstitutional intrusion on that right. In considering these contentions it should be observed that the case does not involve the claim of a news reporter of his right to seek out information from the inmate himself as to prison or disciplinary conditions or other institutional controls or activities affecting prisoners within the institution where the inmate is confined.⁴

The sole issue is whether plaintiff has a First Amendment right to the particular mode of access to Ray requested which is violated by the Bureau of Prison's policy prohibiting the interview. It is not disputed that the Bureau has not denied plaintiff all access to Ray as a source of information for the biography, for plaintiff has been assured of the right to interrogate Ray by correspondence and to elicit Ray's comments on plaintiff's work drafts. In view of these permitted procedures can it be said that the Bureau's policy prohibiting a personal interview intrudes unconstitutionally upon protected First Amendment rights?

III

The right to publish is firmly embedded in the First Amendment and is central to the constitutional guarantee of free speech and a free press. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). The guarantee is "not for the benefit of the press so much as for the benefit of all of us". Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 543, 17 L.Ed.2d 456 (1967).

While newsgathering is viewed as being within the ambit of First Amendment protection as a corollary of the right to publish, for "without some protection for seeking out the news, freedom of the press could be eviscerated", Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972), the extent of access to news sources remains undefined. In another context the Supreme Court has said "the right to speak and publish does not carry with it the unrestrained right to gather information", Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), and this should, of course, be read together with principles firmly enunciated by the Court as to the broad sweep of the First Amendment protections. For example: "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences . . . ." Red Lion Broadcasting Co., Inc. v. F. C. C., 395 U.S. 367, 390, 89 S.Ct. 1794, 1806 and 1807, 23 L.Ed.2d 371 (1969). The public's right to "receive information and ideas" has been recognized and referred to by the Court in a variety of situations. See, e. g., Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed. 2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). Recently, other courts have recognized that a prisoner's claimed right of communication with the press "is enhanced by the right of the public to hear". Nolan v. Fitzpatrick, 451 F.2d 545, 548 (1st Cir. 1971). The principle is firmly established in rules of constitutional adjudication that when First Amendment protections exist in the area of freedom of speech stringent standards are to be applied to governmental intrusions, upon its exercise, and claimed justifications for denying or burdening free speech are to be subjected to careful and rigid scrutiny.⁵ Moreover, whenever governmental action may justifiably impinge upon freedom of speech in pursuit of legitimate governmental goals, it is clear that the goals sought may not be achieved by means having an unnecessarily broad impact on the rights of speech.⁶

Where the avowed purpose of the plaintiff-author-newsgatherer in writing and publishing the biography of James Earl Ray is directly related to information, ideas and experiences of the assassin of Martin Luther King, as light may be shed on them from the interview with a member of the assassin's family who is willing to talk, justification for the Bureau's policy that bans the interview rests upon the Bureau, cf. Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct....