Filed: Apr. 13, 2001
Latest Update: Mar. 03, 2020
Summary: § 540.40 (warden may restrict visiting when necessary to ensure the security, and good order of the institution); In fact, in three separate contexts, the Supreme Court has upheld, prison regulations that prevented the media from conducting interviews with, inmates. Turner, 482 U.S. at 89-91.
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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Regulation of an Inmate’s Access to the Media
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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Opinions of the Office of Legal Counsel in Volume 25
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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Regulation of an Inmate’s Access to the Media
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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