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Government as Administrator of Prisons.—A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.213 The identifiable governmental interests at stake in administration of prisons are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.214 In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face–to–face news interviews between newsmen and prisoners. The Court’s more recent deferential approach to regulation of prisoners’ mail has lessened the differences.


First, in Procunier v. Martinez,215 the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters “unduly complain,” “express inflammatory . . . views or beliefs,” or were “defamatory” or “otherwise inappropriate.” The Court based this ruling not on the rights of the prisoner, but instead on the outsider’s right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation, and it must not be utilized simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary or essential to the protection of the particular government interest involved.

However, in Turner v. Safley,216 the Court made clear that a more deferential standard is applicable when only the communicative rights of inmates are at stake. In upholding a Missouri rule barring inmate–to–inmate correspondence, while striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard. “[W]hen a regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”217 Several considerations are appropriate in determining reasonableness of a regulation. First, there must be a rational relation to a legitimate, content–neutral objective. Prison security, broadly defined, is one such objective.218 Availability of other avenues for exercise of the inmate right suggests reasonableness. A further indicium of reasonableness is present if accommodation would have a negative effect on liberty or safety of guards or other inmates. On the other hand, an alternative to regulation “that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests” suggests[p.1110]unreasonableness.219 Two years after Safley, the Court directly limited Martinez, restricting it to regulation of outgoing correspondence. In the Court’s current view the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.220

Neither prisoners nor newsmen have any affirmative First Amendment right to face–to–face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions.221 Prison restrictions on such interviews do indeed implicate the First Amendment rights of prisoners, the Court held, but the justification for the restraint lay in the implementation of security arrangements, affected by the entry of persons into prisons, and the carrying out of rehabilitation objectives, affected by the phenomenon of the “big wheel,” the exploitation of access to the news media by certain prisoners; alternatives to face–to–face interviews existed, such as mail and visitation with family, attorneys, clergy, and friends. The existence of alternatives and the presence of justifications for the restraint served to weigh the balance against the asserted First Amendment right, the Court held.222

While agreeing with a previous affirmation that “newsgathering is not without some First Amendment protection,”223 the Court denied that the First Amendment accorded newsmen any affirmative obligation on the part of government. “The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.”224 Government has an obligation not to impair the freedom of journalists to seek out newsworthy information, and not to restrain the publication of news. But it cannot be argued, the Court continued, “that the Constitution imposes upon government the affirmative[p.1111]duty to make available to journalists sources of information not available to members of the public generally.”225

Pell and Saxbe did not delineate whether the “equal access” rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied, nor did they purport to begin defining what the rules of equal access are. No greater specificity emerged from Houchins v. KQED,226 in which the broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control. . . . [U]ntil the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”227 Justice Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved an injunction more narrowly drawn to protect the press’ right to use cameras and recorders so as to enlarge public access to the information.228 Thus, any question of special press access appears settled by the decision; yet there still remain the questions raised above. May everyone be barred from access and, once access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators?229


Government and Power of the Purse.—In exercise of the spending power, Congress may refuse to subsidize exercise of First Amendment rights, but it may not deny benefits solely on the basis of exercise of these rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non–federal funds—provided that the speech limitations do not extend to the use of nonfederal funds outside of the federally funded project. In Regan v. Taxation With Representation,230 the Court held that Congress could constitutionally limit tax–exempt status under Sec. 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. “Congress has merely refused to pay for the lobbying out of public moneys,” the Court concluded.231 The effect of the ruling on the organization’s lobbying activities was minimal, however, since it could continue to receive tax– deductible contributions by creating a separate affiliate to conduct the lobbying. In FCC v. League of Women Voters,232 on the other hand, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation, by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist’s argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm’n233 [p.1113]should be controlling.234 Several years later, however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government’s decision “to fund one activity to the exclusion of the other.”235 It remains to be seen what application this decision will have outside the contentious area of abortion regulation.236

Supplement: [P. 1113, add to text following n.236:]

In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of a federal statute requiring the NEA, in awarding grants, to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” 91 The Court acknowledged that, if the statute were “applied in a manner that raises concern about the suppression of disfavored viewpoints,” 92 then such application might be unconstitutional. The statute on its face, however, is constitutional because it “imposes no categorical requirement,” being merely “advisory.” 93 “Any content–based considerations that may be taken into account in the grant–making process are a consequence of the nature of arts funding . . . . The ‘very assumption’ of the NEA is that grants will be awarded according to the ‘artistic worth of competing applications,’ and absolute neutrality is simply ‘inconceivable.’ ” 94 The Court also found that the terms of the statute, “if they appeared in a criminal statute or regulatory scheme, . . . could raise substantial vagueness concerns . . . . But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” 95


213 Pell v. Procunier, 417 U.S. 817, 822 (1974) .
214 Procunier v. Martinez, 416 U.S. 396, 412 (1974) .
215 416 U.S. 396 (1974) . But see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977) , in which the Court sustained, while recognizing the First Amendment implications, prison regulations barring solicitation of prisoners by other prisoners to join a union, banning union meetings, and denying bulk mailings concerning the union from outside sources. The reasonable fears of correctional officers that organizational activities of the sort advocated by the union could impair discipline and lead to possible disorders justified the regulations.
216 482 U.S. 78 (1987) .
217 Id. at 89.
218 All that is required is that the underlying governmental objective be content neutral; the regulation itself may discriminate on the basis of content. See Thornburgh v. Abbott, 490 U.S. 401 (1989) (upholding Federal Bureau of Prisons regulation allowing prison authorities to reject incoming publications found to be detrimental to prison security).
219 482U.S. at 91 482U.S. at 91.
220 Thornburgh v. Abbott, 490 U.S. 401, 411–14 (1989) .
221 Pell v. Procunier, 417 U.S. 817 (1974) . Justices Douglas, Brennan, and Marshall dissented. Id. at 836.
222 Id. at 829–35.
223 Branzburg v. Hayes, 408 U.S. 665, 707 (1972) , quoted in Pell v. Procunier, 417 U.S. 817, 833 (1974) .
224 Id. at 834.
225 Id. The holding was applied to federal prisons in Saxbe v. Washington Post, 417 U.S. 843 (1974) . Dissenting, Justices Powell, Brennan, and Marshall argued that an important societal function of the First Amendment is to preserve free public discussion of governmental affairs, that the press’ role was to make this discussion informed through providing the requisite information, and that the ban on face– to–face interviews unconstitutionally fettered this role of the press. Id. at 850.
226 438 U.S. 1 (1978) . The decision’s imprecision of meaning is partly attributable to the fact that there was no opinion of the Court. A plurality opinion represented the views of only three Justices; two Justices did not participate, three Justices dissented, and one Justice concurred with views that departed somewhat from the plurality.
227 Id. at 15–16.
228 Id. at 16.
229 The dissenters, Justices Stevens, Brennan, and Powell, believed that the Constitution protects the public’s right to be informed about conditions within the prison and that total denial of access, such as existed prior to institution of the suit, was unconstitutional. They would have sustained the more narrowly drawn injunctive relief to the press on the basis that no member of the public had yet sought access. Id. at 19. It is clear that Justice Stewart did not believe the Constitution affords any relief. Id. at 16. While the plurality opinion of the Chief Justice Burger and Justices White and Rehnquist may be read as not deciding whether any public right of access exists, overall it appears to proceed on the unspoken basis that there is none. The second question, when Justice Stewart’s concurring opinion and the dissenting opinion are combined, appears to be answerable qualifiedly in the direction of constitutional constraints upon the nature of access limitation once access is granted.
230 461 U.S. 540 (1983) .
231 Id. at 545. See also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment).
232 468 U.S. 364 (1984) .
233 330 U.S. 127 (1947) . See discussion supra p.156.
234 468U.S. at 399–401 468U.S. at 399–401, & 401 n.27.
235 Rust v. Sullivan, 111 Ct. 1759, 1772 (1991). Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 1780–81.
236 The Court attempted to minimize the potential sweep of its ruling in Rust. “This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government–funded project, is invariably sufficient to justify government control over the content of expression.” 111 S. Ct. at 1776. The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor–patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor–patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. See, e.g., Stanford Univ. v. Sullivan, 773 F. Supp. 472, 476–78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia, of application of vagueness principles in a university setting); Gay Men’s Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (“offensiveness” guidelines restricting Center for Disease Control grants for preparation of AIDS–related educational materials are unconstitutionally vague); Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D.Cal. 1992) (“decency clause” restricting grants by the National Endowment for the Arts is void for vagueness under Fifth Amendment and overbroad under First Amendment; artistic expression is entitled to the same level of protection as academic freedom).

Supplement Footnotes

91 524 U.S. 569, 572 (1998) .
92 524U.S. at 587 524U.S. at 587.
93 524U.S. at 581 524U.S. at 581. Justice Scalia, in a concurring opinion joined by Justice Thomas, claimed that this interpretation of the statute “gutt[ed] it.” Id. at 590. He believed that the statute “establishes content– and viewpoint–based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.” Id.
94 524U.S. at 585 524U.S. at 585.
95 524U.S. at 588–89 524U.S. at 588–89.
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