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Court of Appeal, First District, Division 1, California.

Terry HUSTON and the Soledad Star News, Plaintiff and Respondent, v. R.L. PULLEY et al., Defendants and Appellants.

Civ. 51170.

Decided: October 31, 1983

William S. Boyd, William J. Taylor, Brian F. Berger, Brobeck, Phleger & Harrison, Paul W. Comiskey, Smith, Curran & Comiskey, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union, Foundation of Northern California, San Francisco, for plaintiff and respondent. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William E. Stein, Asst. Atty. Gen., Ronald E. Niver, Richard G. Tullis, Deputy Attys. Gen., San Francisco, for defendants and appellants.

The Soledad Star News is a prison newspaper published monthly by the inmates of the California Training Facility at Soledad under the supervision of employees of the Department of Corrections.   Acting under the authority of section 723 1 of departmental guidelines, the prison refused to allow publication of a photograph and cartoon 2 in the May 31, 1980, issue of the newspaper.   Respondent Terry Huston, editor of the newspaper, appealed this decision to appellant Ruth Rushen, Director of the California Department of Corrections.   The appeal was rejected, and thereafter respondents filed a petition for a writ of habeas corpus seeking to compel appellants to publish the cartoon and photograph;  the trial court so ordered, finding that they were not “obscene and cannot affect the security of the institution,” 3 and this appeal followed.   Our decision affirming the trial court's judgment for respondent was appealed to the California Supreme Court, which transferred the case back to us for reconsideration in light of its opinion in Bailey v. Loggins (1982) 32 Cal.3d 907, 187 Cal.Rptr. 575, 654 P.2d 758.

Appellants concede that the material here in question is not obscene.   They argue, however, that no First Amendment rights attach to the publication 4 of a prison newspaper.   Appellants' submit that the Soledad Star News should be treated as a privately-owned publication for First Amendment purposes, thereby vesting in its publishers—here, prison officials—unbridled authority over the content of the periodical.  (Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 255, 94 S.Ct. 2831, 2838, 41 L.Ed.2d 730.)   In appellants view, if the prison newspaper is not treated as a private publication, incarcerated felons are afforded greater rights than reporters and journalists employed by private publishers.

 Case law does not support appellants' position.   The recent decision of the California Supreme Court in Bailey, supra, held that prisoners retain all free speech rights protected by the First Amendment and the California Constitution, but that such rights may be restricted if essential to protect institutional security and public safety.  (Bailey v. Loggins, supra, 32 Cal.3d 907, 187 Cal.Rptr. 575, 654 P.2d 758.)   Additionally, the federal courts have uniformly held that publication and dissemination of a prison newspaper are protected by First Amendment safeguards.  (Pittman v. Hutto (4th Cir.1979) 594 F.2d 407, 411;  Payne v. Whitmore (N.D.Cal.1971) 325 F.Supp. 1191, 1193;  The Luparer v. Stoneman (D.Ver.1974) 382 F.Supp. 495, 498–499.) 5  In The Luparer v. Stoneman, supra, at page 499, the court declared that “distribution of a prison newspaper to subscribers outside the prison may not be prevented by prison officials unless such distribution would be likely to interfere with the legitimate governmental interests of security, order and rehabilitation discussed in Procunier v. Martinez, 416 U.S. [396] at 413–414 [94 S.Ct. 1800 at 1811, 40 L.Ed.2d 224] ․  Any suppression of a newspaper for reasons other than those would violate the outside subscriber's first amendments rights to receive the newspaper.”   The court added that “distribution of a prison newspaper within the prison is entitled to the same protections and subject to the same limitations as distribution outside of the prison.”  (Id., at p. 499.)

The mere fact that prisoners are involved in the publication, editing and distribution of Soledad Star News does not remove First Amendments rights from consideration.   The United States Supreme Court has declared that “prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.”  (Bell v. Wolfish (1979) 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447;  see also Jones v. North Carolina Prisoners' Labor Union (1977) 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629.)   “Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’  Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948).   But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.”  (Wolff v. McDonnell (1974) 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935.)

 Within this scope, prisoners enjoy the right to freedom of expression under the First Amendment.  (Bell v. Wolfish, supra, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447;  Pell v. Procunier (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495;  Cruz v. Beto (1972) 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263.)   It is a well-established principle that, “[a] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.   Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interest must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.”  (Pell v. Procunier, supra, 417 U.S. at p. 822, 94 S.Ct. at p. 2804.)   Thus, there must be “ ‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’ ”  (Bell v. Wolfish, supra, 441 U.S. at p. 546, 99 S.Ct. at p. 1877;  Wolff v. McDonnell, supra, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935.)

The Penal Code provides statutory affirmation for those constitutional rights retained by prisoners.

Section 2600 declares that prisons may deny prisoners only certain civil rights;  it provides:  “A person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.”

Section 2601 enumerates some of the rights specifically retained by prisoners.   As pertinent to this appeal, it states:  “Notwithstanding any other provision of law, each such person shall have the following civil rights:  [¶] (b) ․ provided that the prison authorities may open and inspect incoming mail to search for contraband.  [¶] (c) To purchase, receive, read, and permit other inmates to read any and all legal materials, newspapers, periodicals, and books accepted for distribution by the United States Post Office, except those which describe the making of any weapon, explosive, poison or destructive device.”

“Under Penal Code section 2600 inmates' rights can be abrogated only upon a showing of necessity for reasonable institutional security and reasonable public protection.”  (In re Brandt (1979) 25 Cal.3d 136, 139, 157 Cal.Rptr. 894, 599 P.2d 89.)   As noted in In re Harrell (1970) 2 Cal.3d 675, 698, 87 Cal.Rptr. 504, 470 P.2d 640:  “Section 2600 cannot be construed as a straightjacket limiting the ability of prison authorities to deal with institutional realities.   Rather it is to be viewed as a prison ‘bill of rights' setting forth certain fundamental guarantees which are to be protected against arbitrary infringement.”

 Pursuant to section 2600, prisoners have free access to all printed materials except those which are obscene or which might threaten prison security.  (In re Harrell, supra, 2 Cal.3d at p. 703, 87 Cal.Rptr. 504, 470 P.2d 640;  In re Van Geldern (1971) 14 Cal.App.3d 838, 841, 92 Cal.Rptr. 592.)   In In re Harrell, supra, our state high court explained that “subject-matter limitations” upon printed material are justified by only two purposes under section 2600:  “(1) to prevent access to obscene materials, and (2) to prevent access to materials tending to incite certain activities which pose a distinct threat to prison discipline, i.e., violence and gambling.” 6  (Id., 2 Cal.3d at p. 703, 87 Cal.Rptr. 504, 470 P.2d 640.)

 Section 2600 is simply statutory recognition that prisoners retain fundamental civil rights not in conflict with penological objectives and necessities.  (Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 132 Cal.Rptr. 405, 553 P.2d 565;  In re Van Geldern (1971) 5 Cal.3d 832, 836–837, 97 Cal.Rptr. 698, 489 P.2d 578.)   Our high court noted in Bailey v. Loggins, supra, 32 Cal.3d 907, 187 Cal.Rptr. 575, 654 P.2d 758, that a prison newspaper “functions as a public forum for the expression of ideas within the limited scope of the paper's purposes, ․”  (Id., at p. 919, 187 Cal.Rptr. 575, 654 P.2d 758.)   Thus, the department may only censure publication material as necessary in order to protect the reasonable security of the institution, insure protection of the public, or serve other valid penological objectives.  (Id., at p. 920, 187 Cal.Rptr. 575, 654 P.2d 758.)  “But it cannot do so merely because it disagrees with the views presented, objects to inmate criticism of administrative policy, or seeks to avoid discussion of controversial issues.”  (Ibid.)

 In Bailey v. Loggins, supra, 32 Cal.3d 907, 187 Cal.Rptr. 575, 554 P.2d 758, our high court also stressed that regulations governing publication of prison newspapers must be drafted “with sensitivity to First Amendment values, and with a view to avoiding restrictions unnecessary to any institutional or penological purposes.”  (Id., at p. 920, 187 Cal.Rptr. 575, 654 P.2d 758.)   The court added that:  “[i]n applying and enforcing regulations, the department should act in a neutral, nonarbitrary, even-handed manner.   Regulations such as sections 723 and 724 which permit the expression of opinion but at the same time permit exclusion of articles because the opinions expressed may be said to attack any privilege, rule, law or policy, or to further any personal interests, risk being applied in a manner which is not neutral with regard to elements of protected expression.”  (Ibid.)

Applying these principles to section 723, subdivision (a) of the Department of Corrections Administrative Manual, we find such regulation, invoked here by prison officials to suppress publication of the cartoon and photograph, constitutionally and statutorily invalid, and thus improperly used by prison officials as the basis for censorship in this case.  (Bailey v. Loggins, supra, 32 Cal.3d 907, 920, 187 Cal.Rptr. 575, 654 P.2d 758.)

Appellants' final contention is that even if First Amendment or statutory rights attach to the publication of a state prison newspaper, the trial court erred in reversing the determination of prison officials to censor the cartoon and photograph here.   The trial court, they assert, failed to properly defer to the judgment of prison officials as required by case law.

Appellants rely primarily upon Pittman v. Hutto, supra, 594 F.2d 407, in arguing that prison officials acted within the scope of their authority here.   In Pittman, prison inmates brought an action in federal court to compel prison administrators to approve publication of a prison newspaper intended as a forum for inmate discussion.  (Id., at pp. 408–409.)   Prison officials censored certain articles in the magazine on the grounds that they contained untrue and inflammatory material about the prison administration.   The trial court agreed that the material was inflammatory and that “ ‘those having the obligation of running prisons could be reasonably concerned․’ ”  (Id., at p. 410.)   On appeal, the court found evidentiary support for the trial court's conclusion that prison officials sincerely and reasonably believed that “the disputed issue of ․ [the newspaper] could be disruptive of prison order and security ․”  (Id., at p. 411.)

 We do not find Pittman persuasive, however, since prison officials there relied upon proper factors—potential disruption of prison security or discipline—in censoring material intended for publication in the prison newspaper.   Here, the cartoon and photograph were denied publication for the reason that they were considered likely to subject the institution to censure or disrepute under section 723, subdivision (a) of departmental guidelines.   As we have said, such amorphous and subjective criteria do not provide a adequate legal justification for infringement of prisoners' free speech rights.  (Bailey v. Loggins, supra, 32 Cal.3d 907, 921, 187 Cal.Rptr. 575, 654 P.2d 758.)   Censorship which, as here, is based upon reasons unrelated to preservation of prison discipline and security cannot withstand constitutional or statutory scrutiny.  (Bailey v. Loggins, supra;  Procunier v. Martinez (1974) 416 U.S. 396, 415–416, 94 S.Ct. 1800, 1812–13, 40 L.Ed.2d 224;  Payne v. Whitmore, supra, 325 F.Supp. 1191, 1193 7 ;  In re Reynolds, supra, 25 Cal.3d 131, 134–135, 157 Cal.Rptr. 892, 599 P.2d 86.)   Therefore, while acknowledging our judicial obligation of deference to the professional expertise of corrections officials (Bell v. Wolfish, supra, 441 U.S. 520, 547–548, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447;  Cruz v. Beto, supra, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263), we cannot uphold administrative decisions which are neither even-handed in application nor consonant with fundamental constitutional principles.

The Attorney General advises us that the section 723 has been rescinded and replaced by “new regulations” pursuant to which the cartoon and photograph would still be denied publication.   But our examination of the material offered for publication in the Soledad Star News convinces us that the trial court correctly ruled that the prison censorship at issue here violated both constitutional and statutory standards.   Unlike the material found objectionable in (In re Van Geldern, supra, 14 Cal.App.3d 838, 92 Cal.Rptr. 592) 8 the cartoon and photograph at issue here were not obscene—as the authorities conceded.   Nor do we find any indication that the ban imposed upon publication of the cartoon and photograph furthered reasonable security or public protection purposes of the institution.   In our view, neither the cartoon nor the photograph so threaten prison discipline, public protection or other legitimate penological interests as to justify a deprivation of the First Amendment rights of inmates.   We therefore conclude that censorship of the particular materials pursuant to these or similar regulations violates respondents' free speech rights, is prohibited by Penal Code section 2600, and was properly enjoined by the trial court's order.  (In re Brandt, supra, 25 Cal.3d 136, 139–140, 157 Cal.Rptr. 894, 599 P.2d 89;  In re Harrell, supra, 2 Cal.3d 675, 704, 87 Cal.Rptr. 504, 470 P.2d 640.) 9  We also reiterate the admonition of our high court in Bailey that departmental regulations governing the content of prison newspapers must be applied “in a consistent and even-handed manner and with due regard for First Amendment values,” and “provide a speedy method of appealing and reviewing a department decision barring publication of an articles.”  (Bailey v. Loggins, supra, 32 Cal.3d 907, 922, 187 Cal.Rptr. 575, 654 P.2d 758.)

The judgment of the trial court directing publication of the cartoon and photograph is affirmed.


1.   Section 723 provides that the prison may reject for publication material which might “subject the institution, as publisher, to public censure or disrepute.”

2.   The cartoon depicted two people having sexual relations on a guillotine, with the caption:  “We at the Soledad Star News do not want to see conjugal visits cut off,” the photograph was of a nude woman bending over and asking readers to “get behind” a motorcycle show being held at the prison.

3.   Respondent's request that the court adopt new publication guidelines was denied.

4.   Appellants also stipulate that the Soledad Star News is published by the State of California and is therefore an official state publication pursuant to Government Code section 14902, which states, in relevant part:  “ ‘State publication’ ․ is defined to include any document, compilation, journal, law, resolution, Blue Book, statute, code, register, pamphlet, list, book report, memorandum, hearing, legislative bill, leaflet, order, regulation, directory, periodical or magazine issued by the state, the Legislature, constitutional officers, or any department, commission or other agency thereof ․”  (Emphasis added.)

5.   The analogous argument advanced by state colleges or universities that the state should be treated as a private publisher for First Amendment purposes has also been consistently rejected.  (See Bazaar v. Fortune (5th Cir.1973) 476 F.2d 570, 574, cert. den.;   Antonelli v. Hammond (D.Mass.1970) 308 F.Supp. 1329, 1337.)   In Bazaar, supra, at page 574, the court ruled:  “The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned.”

6.   It should also be noted that section 2601, subdivision (c) specifically confers upon prisoners the right to disseminate or receive published materials within the scope of the limitation stated in section 2600.  (In re Reynolds (1979) 25 Cal.3d 131, 133, 157 Cal.Rptr. 892, 599 P.2d 86.)

7.   In Payne v. Whitmore, supra, 325 F.Supp. 1191, a prison regulation which barred inmates at the San Mateo County jail from receiving any newspapers or magazines was found violative of the First Amendment.   The court concluded that the justification offered by prison officials—prevention of fire-starting and drain-clogging—was not reasonably related to the valid prison goals of maintaining security and discipline.  (Id., at p. 1193.)   The court concluded, however, that prison officials could “take reasonable steps to prevent receipt of obscene materials, or reading matter which might pose an imminent threat to jail security.”  (Ibid.)

8.   In In re Van Geldern, supra, the court concluded that certain magazines were obscene and therefore might pose a threat to prison discipline by arousing “sexual passions and desires of prisoners who have no outlet in normal heterosexual activity.”  (14 Cal.App.3d at p. 844, 92 Cal.Rptr. 592.)

9.   In In re Brandt, supra, the California Supreme Court declared that a ban on official prisoner's union correspondence between inmates and parolees was not based upon the necessity for “reasonable institutional security,” and was thus improper under section 2600.  (25 Cal.3d at p. 139, 157 Cal.Rptr. 894, 599 P.2d 89.)Moreover, our state high court ruled in In re Harrell, supra, that a prison rule governing the type of printed matter which could be received by prisoners was found invalid insofar as it permitted prison officials to “exclude published materials on the broad ground that they ‘characteristically advocate or tend to incite acts which are a misdemeanor or a felony.’ ”  (2 Cal.3d at p. 704, 87 Cal.Rptr. 504, 470 P.2d 640.)   Such grounds were found to be excessively broad under section 2600.   (Ibid.)

NEWSOM, Associate Justice.

RACANELLI, P.J., and ELKINGTON, J., concur.

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