                         Regulation of an Inmate’s Access to the Media
         So long as the Bureau of Prisons’ decision to regulate an inmate’s access to the news media is
           reasonably related to the legitimate penological interests articulated in the applicable regulations, the
           Bureau of Prisons may bar face-to-face media interviews or videotaped media interviews with an
           inmate, or place other reasonable conditions and restrictions on such interviews.

                                                                                                  April 13, 2001

                 MEMORANDUM OPINION FOR THE COUNSELOR TO THE ATTORNEY GENERAL

             You have asked for our view on the extent to which the Attorney General or the
         warden of a federal prison may regulate an inmate’s right to communicate with the
         news media. This memorandum records, and elaborates on, oral advice given to
         you on April 11, 2001.
             Two sets of regulations speak directly to regulation of an inmate’s contact with
         the media. 1 The broadest of these provisions is 28 C.F.R. § 501.3(a) (2000), which
         provides that the Attorney General or the Director of the Bureau of Prisons may
         authorize the warden of a federal prison “to implement special administrative
         measures that are reasonably necessary to protect persons against the risk of death
         or serious bodily injury.” Such procedures may be implemented upon the determi-
         nation that “there is a substantial risk that a prisoner’s communications or contacts
         with persons could result in death or serious bodily injury to persons, or substan-
         tial damage to property that would entail the risk of death or serious bodily injury
         to persons.” Id. The procedures may include “limiting certain privileges, includ-
         ing, but not limited to, correspondence, visiting, interviews with representatives of
         the news media, and use of the telephone, as is reasonably necessary to protect
         persons against the risk of acts of violence or terrorism.” Id.
             In addition, 28 C.F.R. § 540.62(c) (2000) permits the warden of a prison to
         suspend all media visits during an institutional emergency and for a reasonable
         time after the emergency, and 28 C.F.R. § 540.63(g)(4) (2000) permits a warden to
         deny a request for a media interview of an inmate if “[t]he interview, in the
         opinion of the Warden, would endanger the health or safety of the interviewer, or


             1
               Although these regulations specifically address the issue of inmate contact with the news media,
         we note that wardens of federal prisons also have flexibility, embodied in broader grants of authority,
         to take action reasonably necessary to protect individuals, and the security, discipline, and good order
         of the institution. See, e.g., 28 C.F.R. § 501.1 (2000) (institutional emergency permits suspension of the
         operation of the rules of chapter 28); id. § 501.2 (special administrative measures to prevent disclosure
         of classified information permitted); id. § 540.12 (flexibility in correspondence procedures required by
         size, complexity, and security level of institution, the degree of sophistication of the inmates confined
         and other variables); id. § 540.40 (warden may restrict visiting when necessary to ensure the security
         and good order of the institution); id. § 540.100 (in addition to procedures set forth in subpart, inmate
         telephone use is subject to those limitations that the warden determines are necessary to ensure the
         security and good order, including discipline, of the institution or to protect the public).




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             would probably cause serious unrest or disturb the good order of the institution.”
             Similarly, a warden is permitted to “[l]imit the amount of audio, video, and film
             equipment or number of media personnel entering the institution if the Warden
             determines that the requested equipment or personnel would create a disruption
             within the institution.” Id. § 540.63(h)(4).
                The Supreme Court established definitively in Thornburgh v. Abbott, 490 U.S.
             401, 404 (1989), that prison regulations affecting prisoner’s First Amendment
             rights should be analyzed under the reasonableness standard set out in Turner v.
             Safley, 482 U.S. 78, 89 (1987), and such regulations, therefore, will be found valid
             as long as they are “reasonably related to legitimate penological interests.” Turner,
             482 U.S. at 89. In fact, in three separate contexts, the Supreme Court has upheld
             prison regulations that prevented the media from conducting interviews with
             inmates. See Houchins v. KQED, Inc., 438 U.S. 1 (1978) (upholding denial of
             media requests for a special inspection of facilities and interview of inmates); Pell
             v. Procunier, 417 U.S. 817, 827 (1974) (upholding regulations that limited media
             selection of particular inmate for interview); Saxbe v. Washington Post Co., 417
             U.S. 843 (1974) (upholding regulations prohibiting the media from conducting
             face-to-face interviews with specific inmates).
                Moreover, the United States Court of Appeals for the District of Columbia
             Circuit has held that, to the extent the policy in 28 C.F.R. § 540.62 “may impinge
             on a prisoner’s first amendment rights, it is nevertheless valid as ‘reasonably
             related to legitimate penological interests.’” Kimberlin v. Quinlan, 6 F.3d 789,
             791-92 n.6 (D.C. Cir. 1993) (quoting Turner, 482 U.S. at 89). Analogously, in
             Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993), the United States Court of
             Appeals for the Tenth Circuit held that state prison officials were permitted to
             deny television news personnel access to their prison to conduct a face-to-face
             interview with the inmate. The prison officials had determined that providing such
             access would cause a disruption to the orderly operation of the facility. Because
             there were alternative means for communicating with the media (the inmate was
             free to communicate through the mail and telephone), the Court held that there
             was no violation of the inmate’s First Amendment rights.2

                 2
                   Nor does the media itself have any special or enhanced right of access to an inmate. Although the
             right of the press to gather news and information is protected by the First Amendment, Branzburg v.
             Hayes, 408 U.S. 665, 681 (1972), “the First Amendment does not guarantee the press a constitutional
             right of special access to information not available to the public generally,” id. at 684. In this regard,
             the Supreme Court has held that the press has “no constitutional right of access to prisons or their
             inmates beyond that afforded the general public.” Pell, 417 U.S. at 834.
                 Further, the analysis employed by the courts to determine the validity of regulating an inmate’s
             access to the media is the same regardless of whether the media is asserting a First Amendment right to
             have access to the inmate or the inmate is asserting a First Amendment right to have access to the
             media. Compare Johnson (media sought access) with Kimberlin (inmate sought access). See also
             Thornburgh, 490 U.S. at 410 n.9 (rejecting any attempt to apply a separate standard for cases
             implicating the rights of outsiders versus prisoners).




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             Likewise, when the United States Court of Appeals for the Second Circuit
         upheld a district court’s imposition of conditions on an inmate’s sentence that
         included restrictions on his ability to associate and communicate, the court cited
         the special administrative measures provision of 28 C.F.R. § 501.3(a) in conclud-
         ing that these restrictions were reasonably related to a legitimate penological goal.
         See United States v. Felipe, 148 F.3d 101, 110 (2d Cir. 1998) (upholding
         restrictions based on the fact that goal of preventing inmate from ordering the
         killings and beatings of additional individuals, within the prison system or outside,
         is unquestionably a legitimate penological interest); accord United States v. El-
         Hage, 213 F.3d 74, 81 (2d Cir.), cert. denied, 531 U.S. 881 (2000) (upholding
         pretrial restrictions on defendants’ communications as being reasonably related to
         legitimate security concerns).
             Therefore, as long as the Bureau of Prisons’ decision to regulate an inmate’s
         access to the media is reasonably related to the legitimate penological interests
         articulated in the regulations, the Bureau of Prisons may bar face-to-face inter-
         views or videotaped interviews with an inmate, or place other reasonable condi-
         tions and restrictions on such interviews. 3
             In making the case-by-case determination whether, based on the assertion of a
         legitimate penological interest, an application of any of these prison regulations
         impinging on an inmate’s constitutional rights is valid, the courts will look to:
         (1) whether there is a valid, rational connection between the prison regulation and
         the legitimate governmental interest offered as the basis to justify it; (2) whether
         there are alternative means of exercising rights that remain open to the inmate;
         (3) whether accommodation of the prisoner’s asserted rights would have a ripple
         effect on fellow inmates or prison staff; and (4) whether there is a ready alternative
         to the regulation that would fully accommodate the prisoner’s rights at minimal
         cost to the valid penological interest. Turner, 482 U.S. at 89-91. Included in this
         assessment is whether the regulation is “an ‘exaggerated response’ to prison
         concerns.” Id. at 90. Moreover, in the First Amendment context, the Supreme
         Court also has stated that “[w]e have found it important to inquire whether prison
         regulations restricting inmates’ First Amendment rights operated in a neutral
         fashion, without regard to the content of the expression.” Id.
             In Pell v. Procunier, 417 U.S. 817, 826-27 (1974), the Supreme Court
         explained that:

                  The “normal activity” to which a prison is committed—the involun-
                  tary confinement and isolation of large numbers of people, some of

             3
               Even in the context of media access to court proceedings, in which courts have held that the First
         Amendment protects the rights of the press and the public to observe certain governmental proceedings,
         see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (criminal trials), the courts have
         upheld restrictions on videotaping, photographing, televising, or recording such proceedings. E.g.,
         Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978) (no right to broadcast trial).




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                      whom have demonstrated a capacity for violence—necessarily
                      requires that considerable attention be devoted to the maintenance of
                      security. Although they would not permit prison officials to prohibit
                      all expression or communication by prison inmates, security consid-
                      erations are sufficiently paramount in the administration of the pris-
                      on to justify the imposition of some restrictions on the entry of out-
                      siders into the prison for face-to-face contact with inmates.

             The Court has also noted that “prison officials may well conclude that certain
             proposed interactions, though seemingly innocuous to laymen, have potentially
             significant implications for the order and security of the prison.” Thornburgh, 490
             U.S. at 407. “So long as [a] restriction operates in a neutral fashion, without regard
             to the content of the expression, it falls within the ‘appropriate rules and regula-
             tions’ to which ‘prisoners necessarily are subject,’ and does not abridge any First
             Amendment freedoms retained by prison inmates.” Pell, 417 U.S. at 828 (quoting
             Cruz v. Beto, 405 U.S. 319, 321 (1972)).
                Thus, denial of an interview or of the taping or recording of an interview with
             an inmate, as long as it is based on legitimate prison security concerns rather than
             on the content of the speech itself, is permissible. To the extent there is legitimate
             concern about the effect that an inmate’s speech would have on the conduct of
             others, and the resulting harm that could flow from that effect, 28 C.F.R.
             § 501.3(a) may be available to assert an even broader restriction on the inmate’s
             communications with the media. The legitimacy of such a restriction, however,
             would depend on the strength and clarity of the evidence supporting a determina-
             tion that there is a “substantial risk” that communications will result in “death or
             serious bodily injury.” This determination differs from the penological security
             concerns associated with “the good order of the institution” and “disruption within
             the institution” contained in 28 C.F.R. § 540.63. Indeed, to the extent that the
             determination focuses on effects outside the prison, it is not settled that the courts
             will give Turner deference to the application of the regulation.

                                                              DANIEL L. KOFFSKY
                                                         Acting Assistant Attorney General
                                                              Office of Legal Counsel




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