APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-902)
Before: SEITZ, Chief Judge and GIBBONS and WEIS, Circuit Judges.
After a second denial of declaratory and injunctive relief, plaintiff prison inmates again appeal, contending that their right of access to the press has been improperly restricted. We agree with the district court's conclusion that prison inmates have no constitutional rights to hold group press conferences where other means of communication are available. Although the net result of the litigation is a diminution of the privileges which the plaintiffs enjoyed before they began this legal battle, we accept the contention that their Pyrrhic victory should be given the status of a judgment. Accordingly, we remand for entry of a declaratory judgment.
A class action based on the Civil Rights Act of 1871, 42 U.S.C. § 1983, was filed on behalf of persons confined in the Philadelphia prison system. The plaintiffs contended that the Superintendent of the prisons had unconstitutionally limited inmates in the opportunity to have individual interviews with members of the press as well as group press conferences. The district judge denied injunctive and declaratory relief because of his belief that the Superintendent had pursued a liberal policy in allowing press conferences and interviews, and that censorship was unlikely to recur. We vacated that order and remanded for the promulgation of regulations governing press interviews and conferences together with an administrative review procedure in the event of denial to assure a fair and rational determination of the facts. Main Road v. Aytch, 522 F.2d 1080 (3d Cir. 1975). A detailed review of the factual background is incorporated in that panel opinion and need not be repeated here.
Promptly after the issuance of the remand order, the defendant adopted regulations banning group press conferences which had previously been permitted, and allowing only individual interviews. The new rules provide that an inmate desiring to meet with a reporter is required to give the warden certain information in writing about the proposed discussion. An appropriate location is then designated for the interview. Requests "may be denied by the warden or his designee if the Superintendent of the Philadelphia prisons, or his designee, determines that said interview would present a clear and present danger to the safety or security of the Institution or any of the inmates and/or personnel and/or visitors thereto." (Paragraph 8 of the Regulations as amended.) After receipt of a denial, the inmate within five days may request a hearing before a special board composed of the Deputy Superintendent, Director of Inmate Services, and a warden other than the one denying the request. The inmate is entitled to present his position to the board as is the warden who had refused to permit the interview. The hearing is to be held within ten days of request. The board acts as a fact-finder and is required to prepare written findings of fact as well as a disposition. Its action is administratively final.
The district court found these regulations to be constitutionally permissible and, although it agreed "that the plaintiffs' objections to the proposed regulations should be given consideration, since they make practical sense, there is no legal basis for this court ordering the modifications sought by the plaintiffs." The court then ordered that the complaint be dismissed with prejudice.
Plaintiffs' first contention is that they have a First Amendment right to group press conferences in the prisons. Although they alleged that eighty-five percent of those incarcerated are pretrial detainees, the district court concluded that for purposes of security, all prisoners should be treated alike and, moreover, regulations distinguishing between convicted inmates and others would not be feasible.
In plaintiffs' first appeal, we did not find it necessary to decide whether the Superintendent could prohibit all group press conferences. The issue is fairly presented now, however, and we conclude, as did the district court, that in the circumstances presented prison regulations barring group press conferences are not unconstitutional.
In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629, 45 U.S.L.W. 4820 (U.S. June 23, 1977), the Supreme Court observed that lawful incarceration imposes limitations on constitutional rights, including those conferred by the First Amendment. This was a repetition of the theme expressed in Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974), and Saxbe v. Washington Post Co., 417 U.S. 843, 94 S. Ct. 2811, 41 L. Ed. 2d 514 (1974), where the Court balanced the First Amendment rights of inmates with the governmental concern for prison security. The Court in Pell reasoned that so long as reasonable and effective means of communication to the press remain open, and no discrimination in content is imposed, prison officials must be given latitude. 417 U.S. at 826.
Those who challenge the scope of prison regulations limiting inmate contacts with the press must produce substantial evidence to indicate that the officials have exaggerated their responses to security concerns and penological objectives, Pell v. Procunier, supra at 827. In the absence of such evidence, courts should defer to the informed discretion of prison authorities in this context and permit them "to make the difficult judgments concerning institutional operations in situations such as this." Jones v. North Carolina Prisoners' Labor Union, Inc., supra at 4822.
Plaintiffs here have failed to demonstrate that the prison officials' prohibition of group press conferences does not have a legitimate relationship to security within the prisons. The fact that many of the inmates have not been convicted does not reduce the importance of security concerns. The record recites instances of serious disorders, particularly in the Holmesburg Prison, and, as we noted in our previous opinion, 522 F.2d at 1086, security problems in pretrial detention should not be underestimated. The state has a legitimate interest in the detention of an accused who cannot raise bail, and the prison authorities' concern for stability justifies limitations of rights normally accorded other citizens. United States ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3d Cir. 1976).
Under the proposed regulations, inmates of the Philadelphia prisons do have the opportunity to participate in individual interviews with a member of the press and, in addition, may communicate by mail. These alternatives are adequate to assure that the requisite channels of communication to the public are open. We agree, therefore, with the district judge ...