Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

Artie BAILEY and Prisoners Union, Plaintiffs and Respondents, v. Otis A. LOGGINS and J. J. Enomoto, Defendants and Appellants.

Civ. 44424.

Decided: June 29, 1979

Smith, Snedeker & Comiskey by Michael R. Snedeker, San Francisco, for plaintiffs and respondents. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Roland E. Niver, Richard G. Tullis, Deputy Attys. Gen., San Francisco, for defendants and appellants.

Appellants Otis A. Loggins and J. J. Enomoto appeal from a judgment in Monterey County Superior Court issuing a peremptory writ of mandate which requires the State Department of Corrections (hereafter the Department) to allow respondent Artie Bailey to publish two news articles in the Soledad Prison newspaper, the Star News. The judgment also orders the Department to enact guidelines limiting future censorship of articles and directs it to enact administrative regulations providing for expeditious review. The primary issue is the extent to which appellants, the administrators of a state correctional institution, may control and limit the content of published material appearing in an official inmate newspaper.


In September of 1976, respondent Artie Bailey (hereafter Bailey), an inmate at the California Training Facility at Soledad (hereafter Soledad) and editor of the institutional newspaper the Soledad Star News, sought to publish two news articles. Although the articles were approved for inclusion in the Star News by the editorial board and the print shop supervisor, an associate superintendent refused to permit their publication. Bailey appealed this decision to the first level review officer, asking that the administration (1) permit the publication of the two articles, and (2) establish written guidelines for censorship of the Star News. The appeal was turned down by the first reviewing officer, and similarly denied at the second level of review. Final review was undertaken by the Director of the State Department of Corrections, J. J. Enomoto. The Director denied the appeal as to publication of the subject articles, and respondents thereafter filed a petition for writ of mandate in superior court.

A peremptory writ issued on February 14, 1978 granting respondents the relief requested. The writ ordered appellants to: (a) allow the news articles to be printed, (b) enact administration regulations limiting censorship to matters which “would reasonably be deemed to be a threat to the security of the institution” or which describe the making of any weapon, explosive, poison or destructive device, and (c) enact administrative regulations ensuring expeditious review of censored material.

This appeal ensues.


Appellants do not challenge that portion of the peremptory writ which directs publication of the articles. Rather, they focus upon the other portions of the writ, which they classify as “overly broad” and giving effective control of the content of prison publications to the inmates.

Did respondents fail to exhaust their administrative remedies?

Appellants first assert that the trial court should not have granted respondents any relief changing the regulations governing the content of prison publications because respondents failed to exhaust their administrative remedies. Respondent Bailey raised the issue of guidelines at every level of appellate review. Bailey's first appeal specifically stated that a group of inmates had attempted to negotiate “reasonable written guidelines for censorship,” but were summarily rebuffed by the associate superintendent. The first and second level reviewers refused to issue written guidelines on the ground that they would be “too general” to be of value, while the Director simply cited three administrative regulations which did not furnish any standard for censorship, but merely contained statements of purpose and intent.

The record is clear that Bailey availed himself of every possible administrative remedy before seeking judicial relief.

Did the trial court err in requiring the Department to set forth guidelines limiting censorship of the Star News?

Appellants contend that the trial court had no authority to impose guidelines for censorship, since respondents have no statutory or constitutional right to control the content of official prison publications, and that the Department retains a “publisher's discretion” as to what material will and will not be accepted for publication.

Where governmental power is used to restrict the exercise of First Amendment liberties, such restrictions are subject to a strict standard of review. That test was enunciated by the United States Supreme Court in United States v. O'Brien (1968) 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, and reiterated in Procunier v. Martinez (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, where the court faced the issue of permissible censorship of inmates' mail by prison officials: “(A) government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Id., at p. 411, 94 S.Ct. at p. 1810, quoting from O'Brien, supra, 391 U.S. at p. 377, 88 S.Ct. 1673.) In Procunier, the court identified the governmental interests as the preservation of internal order and discipline at the prisons, the maintenance of security against escape, and the rehabilitation of the prisoners. (416 U.S. at p. 412, 94 S.Ct. 1800.) The court struck down the Department's regulations on the basis that the restrictions on incoming mail were overly broad and unnecessary to the furtherance of a governmental interest unrelated to suppression of expression. (Id., at p. 415, 94 S.Ct. 1800.)

The Procunier standard was subsequently utilized in The Luparar v. Stoneman (Vt.1974) 382 F.Supp. 495, a case indistinguishable from the one at bar, with the exception that the prison administration there sought to wholly suppress the distribution of a prison newspaper which did not conform to its own guidelines for publication. Noting that the Procunier court apparently based its decision on the First Amendment rights of outsiders to carry on uncensored correspondence with prison inmates, the court in Luparar concluded that “the same standards that determine whether distribution outside the prison would threaten legitimate governmental interests . . . apply to distribution within the prison.” (382 F.Supp. at p. 499.) The court held that the termination of The Luparar by prison officials was improper, since the objections to its content did not threaten governmental interests of security, order, or rehabilitation. (Id., at p. 500.)

Pell v. Procunier (1974) 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, confirms Luparar's analysis based upon the free speech rights of prisoners themselves. There, the court stated 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.” (417 U.S. at p. 822, 94 S.Ct. at p. 2804.) Thus, any challenge to prison restrictions asserted to inhibit First Amendment interests “must be analyzed in terms of the legitimate policies and goals of the corrections system . . . .” (Id.) In Pell, the court upheld prison restrictions on face-to-face interviews between the press and inmates, since the regulations were legitimately related to the security and administrative problems of the prison, did not restrict other means of communication with persons outside the prison system, and operated in a neutral fashion, without regard to the content of expression. (Id., at pp. 826-828, 94 S.Ct. 2800.)

The teachings of Procunier, Luparar and Pell dictate that any state interference with the rights of prisoners to express their views in printed form must further a substantial state interest unrelated to content and must do so in a manner no greater than necessary for the protection of that interest.

In California, those state interests which will justify limitations on the rights of prisoners have been specifically prescribed by the Legislature. Penal Code section 2600, as amended in 1975, 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.” Furthermore, Penal Code section 2601 provides in pertinent part: “Notwithstanding any other provision of the law, each such person shall have the following civil rights: . . . (P) (c) To purchase, receive, read, and permit other inmates to read any and all legal materials, newspapers, periodicals, and books . . . except those which describe the making of any weapon, explosive, poison or destructive device.” In In re Harrell (1970) 2 Cal.3d 675, 87 Cal.Rptr. 504, 470 P.2d 640, the California Supreme Court held that prison officials had no authority to prevent access to reading material on any ground not set forth in former section 2600. (Id., at pp. 703-704, 87 Cal.Rptr. 504, 470 P.2d 640.)

As found by the trial court, appellants' guidelines for publication were overly broad in that they conferred far too much discretion and latitude on the part of prison officials to suppress unwelcome criticism and controversial views which presented no threat whatsoever to the legitimate security interests of the institution. (Procunier, supra, 416 U.S. at p. 415, 94 S.Ct. 1800; Luparar, supra, 382 F.Supp. at p. 500.)1

Appellants maintain that sections 2600 and 2601 do not apply to prison publications, arguing that if the Legislature had wished to include such publications, it would have done so. Section 2600, however, states that a prisoner may be deprived of “Only such rights ” as necessary for the security of the institution or the protection of the public. The plain implication is that the Legislature intended prisoners to retain All other rights afforded citizens. In addition, section 2601(c) places special emphasis on First Amendment rights, limiting censorship only to materials which would aid a prisoner in committing an act of violence. Appellant's argument, therefore, flies in the face of both the language and intent of the statutes.

Appellants place perhaps their heaviest reliance on the argument that, since the inmates have no constitutional right to a publication in the first place, if the institution chooses to provide such a publication, it retains the same right which any publisher has to control the content of its publication. Appellants point out that the Star News is printed at taxpayer expense, and was created for educational and training purposes, with the objective of promoting good morale among inmates and their families and informing them of news happening within the institution.

While it may be true that respondents have no right to a prison newspaper, federal cases have established that once the state has established and fostered such a newspaper, it cannot thereafter restrict its content in a manner inconsistent with the First Amendment. For example, in Antonelli v. Hammond (Mass.1970) 308 F.Supp. 1329, dealing with the right of college officials to censor a campus newspaper created and maintained by a tax-supported state university, the court stated: “We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is a part of the university structure and is financed with funds controlled by the administration. The state is not necessarily the unrestrained master of what it creates and fosters. Thus in cases concerning school-supported publications or the use of school facilities, the courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily related to the maintenance of order and discipline within the education process. See, e. g., Dickey v. Alabama State Board of Education, 1967, M.D.Ala., 273 F.Supp. 613; Smith v. University of Tennessee, 1969, E.D.Tenn., 300 F.Supp. 777; Close v. Lederle, 1969, D.Mass., 303 F.Supp. 1109.” (308 F.Supp. at p. 1337.)

A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property. (Danskin v. San Diego Unified School District (1946) 28 Cal.2d 536, 545-546, 171 P.2d 885.)

Thus, in Joyner v. Whiting (4th Cir. 1973) 477 F.2d 456, the court said:

“It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment. . . . This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege. Id. at 460 (citations omitted).”

The Luparar v. Stoneman, supra, 382 F.Supp. 495, applied these same principles in the context of a state-supported prison newspaper. The court there held:

“The state is not required to establish or support an inmate newspaper, and once it does so, it can withdraw its approval or support for any reason, except those impermissible under the first amendment. However, once the state has allowed a newspaper to be established, the objection of prison officials, or those in the Department of Corrections, to its editorial content is not a permissible reason under the first amendment to prohibit its distribution.”

(Id., at p. 499.)

We find this reasoning to be compelling in the case at bar. The trial court found that “(p)rison inmates are not free to establish competing publications similar to the Star News within the prison environment.” In view of the fact that the state-sponsored newspaper is the only means through which inmates may express their opinions for general circulation, the state may not suppress such views in a manner inconsistent with the First Amendment, and based solely on the power of the purse. (See Joyner, supra, 477 F.2d at p. 460.)

Even if it could properly be said that the state is the “owner and publisher” of the Star News, this status would not confer upon it the right to suppress free expression in a manner inconsistent with the First Amendment. A state does not possess the same prerogatives as a private publisher to suppress unwelcome views. (Cf., Miami Herald Pub. Co. v. Tornillo (1974) 418 U.S. 241, 255, 94 S.Ct. 2831, 41 L.Ed.2d 730.) An instrumentality of the state “may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.” (Healy v. James (1972) 408 U.S. 169, 187-188, 92 S.Ct. 2338, 2349, 33 L.Ed.2d 266.)

Therefore, the trial court properly ordered appellants to enact administrative guidelines which limit censorship of the prison newspaper in accordance with Penal Code sections 2600 and 2601(c).

Did the trial court exceeds its authority in ordering the Department to enact new regulations for expeditious review of censored articles?

Appellants contend that the trial court had no authority to order them to enact administrative regulations providing for “expeditious review” of censored articles. It is argued that the current regulations for ordinary appeals are sufficient and were substantially complied with below. Furthermore, since this appeals procedure was approved by the Court of Appeal in In re Muszalski (1975) 52 Cal.App.3d 500, 125 Cal.Rptr. 286, the trial court exceeded its authority under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.2

Taking the latter argument first, appellants plainly err in asserting that the administrative appeals procedure under current use was approved by Muszalski. The affidavit of appellant Enomoto states that the appeals procedure approved in Muszalski was “revised in its entirety” as of August 8, 1977.

In any event, Muszalski did not arise in the context of a prior restraint. As will be shown, Infra, normal prison procedure for appealing actions of the staff is totally inadequate where that action constitutes a prior restraint on First Amendment rights.

It is initially clear that the right of inmates to uncensored communication is a First Amendment liberty within the meaning of the Fourteenth Amendment. (Procunier v. Martinez, supra, 416 U.S. at p. 418, 94 S.Ct. 1800.) As such, the administration's decision to censor any material in the prison newspaper involves a prior restraint and will avoid constitutional infirmity only if accompanied by certain “minimum procedural safeguards.” (id., at p. 417, 94 S.ct. 1800; see also southeastern promotions v. conrad (1974) 420 U.S. 546, 560, 95 S.Ct. 1239, 43 L.Ed.2d 448.) As the Supreme Court has held in Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, these safeguards must assure that (1) the burden of proving the material is unprotected by the First Amendment rests on the censor, (2) any restraint prior to judicial review is imposed for “the shortest fixed period compatible with sound judicial resolution,” and (3) there will be a final judicial determination on the merits. (Id., at pp. 58-59, 85 S.Ct. at p. 739.) Although Freedman involved film censorship, these principles are applicable A fortiori where the prior restraint is placed upon the publication of written materials. Thus, in The Luparar, supra, the court held that prison officials must establish censorship procedures consistent with Freedman, inter alia:

“To be valid, the regulations must proscribe a definite brief time within which the review of submitted material will be completed. See id. In addition, the editorial staff of the prison newspaper must be notified of the rejection of material submitted by it, the reasons for the rejection, and must be given a reasonable opportunity to protest that decision. Complaints about the decision must be referred to a prison official who did not take part in the original determination of suitability for publication. See Procunier v. Martinez, supra, (416 U.S.,) at 418-19, 94 S.Ct. 1800. These requirements do not appear to be too burdensome to either plaintiffs or defendants, and we believe that clear regulations can establish a procedure that can deal fairly with both the first amendment interests involved and the legitimate interests of the prison officials.” (382 F.Supp. at p. 502.)

The ordinary appeals procedure at Soledad requires the inmate to submit a written appeal of any staff decision to a first level reviewer. The reviewer has 10 working days in which to process and return the appeal. If the appeal is denied, a second level of review is permitted. The second level reviewer then has 15 days in which to act on the appeal. A third level appeal ensues which allows the director 20 additional days to respond. Where a delay is anticipated, the director may submit a written explanation of the reasons therefor, and set a new “estimated completion date.”

It is obvious that the foregoing procedures do not meet the mandate of Freedman that the delay be imposed for the shortest practicable period of time. By the time an inmate's appeal was completely processed in the instant context, any news article censored would likely have already long since lost its “newsworthiness,” to say nothing of the time involved in pursuing relief through the courts. The procedure also violates the precept that the burden must be on the censor to establish the unprotected nature of the material. While practical considerations and the nature of a prison environment militate against requiring authorities to secure judicial approval prior to every act of censorship (see Luparar, supra, 382 F.Supp. 803, 810), we conclude that inmates are entitled at a minimum to a system of expeditious review, placing the burden of initiating proceedings on the censor and providing the opportunity for a prompt judicial determination.

The trial court was well within its authority in ordering appellants to enact new administrative regulations for review of censored articles in the Star News.

The judgment is affirmed.

I dissent.

The majority opinion states that “(t)he primary issue is the extent to which appellants, the administrators of a state correctional institution, may control and limit the content of published material appearing in an official inmate newspaper.” If we assume that the “Star News” is an inmate newspaper I have no fault to find with the majority opinion. However, I do not believe that the facts of this case support the conclusion of an inmate newspaper.

Department of Corrections Administrative Manual provides in part as follows:

“Sec. 720. Policy. (a) Institutions may publish a newspaper, magazine, or newsletter as specifically authorized by the warden or superintendent.

“(b) Inmates may participate in the publishing and distribution of an institution publication when specifically approved to do so by the warden or superintendent.” The Star News was published by the institution in accordance with these regulations.

The respondents recognize the importance of the distinction between an inmate newspaper and one published by the institution. The respondents' proposed finding number one specifically referred to the Star News as an “inmate newspaper.” The proposed finding was not accepted by the court.

The present case actually involves the right of an owner and publisher of a newspaper, here the State of California, to determine the policy and content of its newspaper. The inmates of the prison serve as staff on the paper. They are not the publisher and the Star News is not an inmate-established or published newspaper.

The parties have not cited any authority, and I cannot find any, that holds that a member of the staff of a publication has a constitutional or statutory right to control the policy or editorial content of the paper.

The cases cited by respondents and those that we have read are distinguishable on their facts. In those cases a state agency is attempting to exercise its police power of censorship of the publication that it does not own or publish. In the present case the state agency is exercising its right as an owner and publisher of the paper, it is not exercising the governmental power of censorship.

Turning to the cases cited, Procunier v. Martinez (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, related to the censorship of inmates' incoming mail. It did not relate to a prison publication.

The Luparar v. Stoneman (1974) 382 F.Supp. 495, is similar to the present case in that The Luparar is a prison newspaper, but is distinguishable as that paper, as stated in the opinion, was “published monthly by the inmates at the Vermont State Prison . . . .”

Antonelli v. Hammond (Mass.1970) 308 F.Supp. 1329, and Joyner v. Whiting (4th Cir. 1973) 477 F.2d 456, deal with college newspapers. In each case, the college, a state agency, allowed the paper to be established and partially supported it, but the paper was published by the students, not by the college.

The present case involves the exercise of a publisher's discretion as to the content of the newspaper. There is no issue of censorship or First Amendment rights involved.

The trial court has also mandated the respondents to enact administrative regulations to limit censorship and to ensure expeditious review of censored materials. As censorship is not involved in the publication of this newspaper and as there is no constitutional or statutory compulsion that the state adopt regulations concerning censorship of its own publications, these directives are improper.

I would reverse the judgment.



1.  The text of these guidelines need not be recited here for the reason that, subsequent to judgment below, the Department abolished all detailed guidelines and substituted therefor the following: “Article 5. Institution Publications. (P) 3250. General Policy. Institutions may publish a newspaper, magazine, or newsletter as specifically authorized by the warden or superintendent. (P) Participation. Inmates may participate in the publishing and distribution of an institution publication when specifically approved to do so by the warden or superintendent.” This action by the Department does not render the case moot. In their present form, the new regulations grant absolute discretion to the “warden or superintendent” over the content of the Star News. The issue before us is identical: to what extent may the state limit the right of inmates to express their views in a prison-sponsored newspaper? Because the controversy remains unresolved, we decline to dismiss the appeal. (See Diamond v. Bland (1970) 3 Cal.3d 653, 657, 91 Cal.Rptr. 501, 477 P.2d 733; Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717.)

2.  “(A)ll tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.” (57 Cal.2d at p. 455, 20 Cal.Rptr. at p. 323, 369 P.2d at p. 939.)

DRUMMOND,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

RATTIGAN, J., concurs.