Saxbe v. Washington Post Co.

Delivered the opinion of the Court.

The respondents, a major metropolitan newspaper and one of its reporters, initiated this litigation to challenge the constitutionality of ¶ 4b (6) of Policy Statement 1220.1A of the Federal Bureau of Prisons. At the time that the case was in the District Court and the Court of Appeals, this regulation prohibited any personal interviews between newsmen and individually designated federal prison inmates. The Solicitor General has informed the Court that the regulation was recently amended “to permit press interviews at federal prison institutions that can be characterized as minimum security.” The general prohibition of press interviews with inmates remains in effect, however, in three-quarters of the federal prisons, i. e., in all medium security and maximum security institutions, including the two institutions involved in this case.

In March 1972, the respondents requested permission from the petitioners, the officials responsible for administering federal prisons, to conduct several interviews with specific inmates in the prisons at Lewisburg, Pennsylvania, and Danbury, Connecticut. The petitioners denied permission for such interviews on the authority of Policy Statement 1220.1A. The respondents thereupon commenced this suit to challenge these denials and the regulation on which they were predicated. Their essential contention was that the prohibition of all press interviews with prison inmates abridges the protection that the First Amendment accords the newsgathering activity of a free press. The District Court agreed with this contention and held that the Policy Statement, insofar as it totally prohibited all press interviews at the institutions involved, violated the First Amendment. Although the court acknowledged that institutional considerations could justify the prohibition of some press-inmate interviews, the District Court ordered the petitioners to cease enforcing the blanket prohibition of all such interviews and, pending modification of the Policy Statement, to consider interview requests on an individual basis and “to withhold permission to interview . . . only where demonstrable administrative or disciplinary considerations dominate.” 357 F. Supp. 770, 775 (DC 1972).

The petitioners appealed the District Court's judgment to the Court of Appeals for the District of Columbia Circuit. We stayed the District Court’s order pending the completion of that appeal, sub nom. Kleindienst v. Washington Post Co., 406 U. S. 912 (1972). The first time this case was before it, the Court of Appeals remanded it to the District Court for additional findings of fact and particularly for reconsideration in light of this Court’s intervening decision in Branzburg v. Hayes, 408 U. S. 665 (1972). 155 U. S. App. D. C. 283, 477 F. 2d 1168 (1972). On remand, the District Court conducted further evidentiary hearings, supplemented its findings of fact, and reconsidered its conclusions of law in light of Branzburg and other recent decisions that were urged upon it. In due course, the court reaffirmed its original decision, 357 F. Supp. 779 (DC 1972), and the petitioners again appealed to the Court of Appeals.

The Court of Appeals affirmed the judgment of the District Court. It held that press interviews with prison inmates could not be totally prohibited as the Policy Statement purported to do, but may “be denied only where it is the judgment of the administrator directly concerned, based on either the demonstrated behavior of the inmate, or special conditions existing at the institution at the time the interview is requested, or both, that the interview presents a serious risk of administrative or disciplinary problems.” 161 U. S. App. D. C. 75, 87-88, 494 F. 2d 994, 1006-1007 (1974). Any blanket prohibition of such face-to-face interviews was held to abridge the First Amendment’s protection of press freedom. Because of the important constitutional question involved, and because of an apparent conflict in approach to the question between the District of Columbia Circuit and the Ninth Circuit, we granted certiorari. 415 U. S. 956 (1974).

The policies of the Federal Bureau of Prisons regarding visitations to prison inmates do not differ significantly from the California policies considered in Pell v. Procunier, ante, p. 817. As the Court of Appeals noted, “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.” 161 U. S. App. D. C., at 78, 494 F. 2d, at 997. Other than members of these limited groups with personal and professional ties to the inmates, members of the general public are not permitted under the Bureau’s policy to enter the prisons and interview consenting inmates. This policy is applied with an even hand to all prospective visitors, including newsmen, who, like other members of the public, may enter the prisons to visit friends or family members. But, again like members of the general public, they may not enter the prison and insist on visiting an inmate with whom they have no such relationship. There is no indication on this record that Policy Statement 1220.1A has been interpreted or applied to prohibit a person, who is otherwise eligible to visit and interview an inmate, from doing so merely because he is a member of the press.'

Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there. Indeed, journalists are given access to the prisons and to prison inmates that in significant respects exceeds that afforded to members of the general public. For example, Policy Statement 1220.1A permits press representatives to tour the prisons and to photograph any prison facilities. During such tours a newsman is permitted to conduct brief interviews with any inmates he might encounter. In addition, newsmen and inmates are permitted virtually unlimited written correspondence with each other. Outgoing correspondence from inmates to press representatives is neither censored nor inspected. Incoming mail from press representatives is inspected only for contraband or statements inciting illegal action. Moreover, prison officials are available to the press and are required by Policy Statement 1220.1A to “give all possible assistance” to press representatives “in providing background and a specific report” concerning any inmate complaints.

The respondents have also conceded in their brief that Policy Statement 1220.1A “has been interpreted by the Bureau to permit a newsman to interview a randomly selected group of inmates.” As a result, the reporter respondent in this case was permitted to interview a randomly selected group of inmates at the Lewisburg prison. Finally, in light of the constant turnover in the prison population, it is clear that there is always a large group of recently released prisoners who are available to both the press and the general public as a source of information about conditions in the federal prisons.

Thus, it is clear that Policy Statement 1220.1A is not part of any attempt by the Federal Bureau of Prisons to conceal from the public the conditions prevailing in federal prisons. This limitation on prearranged press interviews with individually designated inmates was motivated by the same disciplinary and administrative considerations that underlie § 115.071 of the California Department of Corrections Manual, which we considered in Pell v. Procunier and Procunier v. Hillery, ante, p. 817. The experience of the Bureau accords with that of the California Department of Corrections and suggests that the interest of the press is often “concentrated on a relatively small number of inmates who, as a result, [become] virtual-'public figures’ within the prison society and gai[n] a disproportionate degree of notoriety and influence among their fellow inmates.” Pell, ante, at 831-832. As a result those inmates who are conspicuously publicized because of their repeated contacts with the press tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison.

The District Court and the Court of Appeals sought to meet this problem by decreeing a selective policy whereby prison officials could deny interviews likely to lead to disciplinary problems. In the expert judgment of the petitioners, however, such a selective policy would spawn serious discipline and morale problems of its own by engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows. The Director of the Bureau testified that “one of the very basic tenets of sound correctional administration” is “to treat all inmates incarcerated in [the] institutions, as far as possible, equally.” This expert and professional judgment is, of course, entitled to great deference.

In this case, however, it is unnecessary to engage in any delicate balancing of such penal considerations against the legitimate demands of the First Amendment. For it is apparent that the sole limitation imposed on newsgather-ing by Policy Statement 1220.1A is no more than a particularized application of the general rule that nobody may enter the prison and designate an inmate whom he would like to visit, unless the prospective visitor is a lawyer, clergyman, relative, or friend of that inmate. This limitation on visitations is justified by what the Court of Appeals acknowledged as “the truism that prisons are institutions where public access is generally limited.” 161 U. S. App. D. C., at 80, 494 F. 2d, at 999. See Adderley v. Florida, 385 U. S. 39, 41 (1966). In this regard, the Bureau of Prisons visitation policy does not place the press in any less advantageous position than the public generally. Indeed, the total access to federal prisons and prison inmates that the Bureau of Prisons accords to the press far surpasses that available to other members of the public.

We find this case constitutionally indistinguishable from Pell v. Procunier, ante, p. 817, and thus fully controlled by the holding in that case. “[N]ewsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.” . Id., at 834. The proposition “that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally . . . finds no support in the words of the Constitution or in any decision of this Court.” Id., at 834-835. Thus, since Policy Statement 1220.1A “does not deny the press access to sources of information available to members of the general public,” id., at 835, we hold that it does not abridge the freedom that the First Amendment guarantees. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

[For dissenting opinion of Me. Justice Douglas, see ante, p. 836.]

“Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public, if it is limited to the discussion of institutional facilities, programs and activities.”

Letter of Apr. 16, 1974, to Clerk, Supreme Court of the United States, presently on file with the Clerk.

See Seattle-Tacoma Newspaper Guild v. Parker, 480 E. 2d 1062, 1066-1067 (1973). See also Hillery v. Procunier, 364 F. Supp. 196, 199-200 (ND Cal. 1973).

The Solicitor General’s brief represents that “[m] embers of the press, like the public generally, may visit the prison to see friends there.” Presumably, the same is true with respect to family members. The respondents have not disputed this representation.

Policy Statement 1220.1A ¶¶ 4b (5) and (7).

See id., ¶ 4b (6) set out in n. 1, supra. The newsman is requested not to reveal the identity of the inmate, and the conversation is to be limited to institutional facilities, programs, and activities.

Id., 1H[4b (1) and (2).

Id., 14b (12).

The Solicitor General’s brief informs us that “approximately one-half of the prison population on any one day will be released within the following 12 months. The average population is 23,000, of whom approximately 12,000 are released each year.”