Hillery

MEMORANDUM OF OPINION

At issue here is the constitutionality of § 415.071 of the California Department of Corrections Manual, which provides :

I.

Plaintiffs seek injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. § 1983 . Jurisdiction is conferred upon this court under Title 28 U. S.C. §§ 1343(3), 1343(4) and 2201.

II.

Plaintiffs Hillery, Spain, Bly and Guile are prisoners at San Quentin State Penitentiary. Editors of Earth Magazine wish to interview Hillery. Plaintiffs Pell, Sebal, and Jacobs are, respectively, free lance, newspaper, and television journalists, each of whom wishes to interview one of the three other inmate plaintiffs. Each of the inmate plaintiffs has affirmatively consented to an interview; each request was denied by the Warden on the basis of § 415.071. None of the prisoner plaintiffs has been alleged by the defendants to have presented disciplinary problems; nor have defendants alleged a proclivity of these media plaintiffs to create security risks.

Defendant Procunier is the Director of the State Department of Corrections. Defendant Nelson is the Warden of San Quentin; defendants Park and O’Brien are Associate Wardens.

III.

This…

(concurring) :

For the reasons expressed in the majority opinion I concur in the holding therein that section 415.071 is not violative of the rights of the news media.

I concur also in the holding in that opinion that said section is violative of the rights of the plaintiff inmates, but I do so on a different basis.

The majority examines the constitutionality of the regulation prohibiting inmates from requesting interviews with the news media under the “compelling interest” test, applicable to First Amendment restrictions in society at large.

However, in Seattle-Tacoma Newspaper Guild, Local #82 v. Parker, 480 F.2d 1062 (9 Cir. 1973), the Ninth Circuit Court of Appeals eschewed the “compelling interest” test as applied to First Amendment restrictions in the prison context, and substituted therefor the “rational basis” analysis:

While the specific factual situation in Seattle-Tacoma differs from the instant case, it is my conclusion that the Seattle-tacoma rationale is herein controlling.

But even under to broader “rational basis” analysis, the blanket prohibition of inmate interviews with the media must fall. As the majority notes, there is insufficient evidence in the…

Before HAMLIN, Circuit Judge, and EAST and WILLIAMS, District Judges.

Probable Jurisdiction Noted January 7, 1974. See 94 S.Ct. 862 .

SPENCER WILLIAMS, District Judge:

At issue here is the constitutionality of § 415.071 of the California Department of Corrections Manual, which provides:

Plaintiffs seek injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. § 1983 . Jurisdiction is conferred upon this court under Title 28 U. S.C. §§ 1343(3), 1343(4) and 2201.

Plaintiffs Hillery, Spain, Bly and Guile are prisoners at San Quentin State Penitentiary. Editors of Earth Magazine wish to interview Hillery. Plaintiffs Pell, Sebal, and Jacobs are, respectively, free lance, newspaper, and television journalists, each of whom wishes to interview one of the three other inmate plaintiffs. Each of the inmate plaintiffs has affirmatively consented to an interview; each request was denied by the Warden on the basis of § 415.071. None of the prisoner plaintiffs has been alleged by the defendants to have presented disciplinary problems; nor have defendants alleged a proclivity of these media plaintiffs to create security risks.

Defendant Procunier is the Director of the State…