SAXBE v. WASHINGTON POST CO.

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Argument of Bork

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-1265, the Saxbe against the Washington Post.

Mr. Solicitor General.

Mr. Bork: Mr. Chief Justice, and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the District of Columbia.

The respondents, the Washington Post Company and a reporter Ben Bagdikian, brought this action in the District Court for the District of Columbia challenging as a violation of the First Amendment, the Federal Bureau of Prisons Policy prohibiting members of the press from obtaining personal interviews with pre-selected inmates.

Petitioners here, the Attorney General, and Mr. Carlson, the Director of the United States Bureau of Prisons were defendants below.

In the courts below, the plaintiffs-respondents complaint sought by way of declaratory judgment an injunctive relief to gain access to any and all inmates in the Federal Prison System.

Both the District Court and the Court of Appeals however gave more limited relief in which the presumption appears to be according to the relief granted that press interviews will be allowed unless there are serious administrative or disciplinary problems likely to be solved.

In other word, the District Court was -- they say affirmed with slight modification by the Court of Appeals.

The position to the parties I think have shifted slightly in this Court.

Respondents now adopt and defend the decision of the Court of Appeals, and I have informed this Court and we’ll mention again that the Bureau of Prisons will soon promulgate a new policy, which prohibits interviews, pre-selected inmates, only in those institutions where the Bureau deems it essential that is maximum and medium security institutions.

All other institutions, prison farms, halfway houses, youth and juvenile institutions for example will permit press interviews under reasonable regulations as to time and place.

This policy now correlates the rule about interviews with the Director’s judgment about which institutions are at tension-filled and which institutions that policy is necessary.

Justice Potter Stewart: Which institutions are tension-filled?

Mr. Bork: Yes, Mr. Justice Stewart.

Justice Potter Stewart: I am not sure, I understood you.

Mr. Bork: This case comes down now therefore I think simply to the question of the Bureau’s power to maintain a no interview rule in maximum security and medium security facilities.

Those are facilities with strong perimeter guards, walls, double fences, and so forth.

I think it’s important to be quite clear about what this case involves and what this case does not involve.

And I think I have to say that I believe that the First Amendment claim here is not at the core of First Amendment because I think they are relatively attenuated First Amendment claim, and I say that for two reasons.

One, it does not involve any inhibition on the right to publish.

This is a claim of a right of access to news-worthy information which I think is not at the core of the First Amendment.

And secondly, we have the claim made in a prison context which is a regulated context, in which many constitutional rights vary because of the nature of the context, and in which primary discretion is entrusted to the Director of Bureau of Prisons.

What this case does involve is a restriction on one of many modes of access to news.

It is not enough to argue I think as respondents do, that they could do a more effective job of reporting if this mode of access were also available to them.

As I have said the core of First Amendment’s guarantee is the freedom to publish.

The amendment’s application to rights of access is ancillary to the freedom to publish.

And as the Branzburg opinion reminds us, rights of access may be limited by Government for reasons which would not give Government the power or the right to limit publication. The Branzburg opinion gives examples of that, I think Zemel against Rusk, Kleindienst against Mandel are other instances where access may be denied lawfully although publication could not lawfully be prevented.

That’s frequent in Governmental life I think it’s properly so surely a judge could tell his law clerks.

But they may not give interviews to the press about pending cases.

And I assume they could discharge a clerk who did even though he might not be able to enjoin the publication if the information was given.

Now in this case, the press has so many sources of information and the minor restrictions placed on this one journalistic technique is so vital of prison administration that I find it difficult to think there is a valid First Amendment claim.

I would think, I would urge that the proper method of review is to ask whether the Director of the Bureau of Prisons has adopted a regulation which lies within the zone of reasonableness which accommodates the competing policies in a manner that can be said to be rational and to be reasonable.

Because any other mode of review will involve courts in effect in second guessing the administrative decisions of the Director of the Bureau of Prisons in detail in the guides of constitutional adjudication.

It will also prevent the evolution of prison policy and for policy in these matters or the matter does evolve in the Federal Bureau of Prison system.

Justice William O. Douglas: Has the -- has Congress ever entered this area?

Mr. Bork: About the communications with the press, Mr. Justice Douglas?

Justice William O. Douglas: I mean, generally with prison regulations, generally?

Mr. Bork: I think Congress has legislated as to certain matters dealing with the prison but much of the control is delegated to the Director of the Bureau of Prisons.

Justice William O. Douglas: I often wondered but I never thought through the question of whether or not Congress under First Amendment would have the power to take affirmative action to make sure that the freedom of speech and the press which may not be abridge is not abridge.

Mr. Bork: Well -- Mr.

Justice William O. Douglas: That may be far for you here but I just --

Mr. Bork: No, I think --

Justice William O. Douglas: It’s getting close to a federal regulation.

Mr. Bork: We are in the field of federal regulation that Mr. Justice Douglas and I think, Congress would not need to legislate under the First Amendment.

It could just regulate the prisons as it see is fit, and if it wishes to do so of course may implement First Amendment values although it need not use the First Amendment as a source of legislative power.

These are the Federal Institutions.

But recalling that this is a regulated context where regulation of Constitutional rights is permissible, and I think that the zone of reasonableness is the proper standard to judge the Director of the Bureau of Prisons standards, I think we might examine the actual claim in this case.

Respondents and varies amici pitch this case on the press’ need to learn about prison conditions, and the allegation is prison conditions require reform and if the press can’t tell us about them we won’t know about them and won’t reform them.

I would suggest that there’s almost nothing about prison conditions certainly nothing about general conditions, but the press cannot now learn with this.

I would like just to run through the sources of information available to the press now about prison conditions.

Even for example in a maximum security prison like Leavenworth.

It’s been pointed out that the press are completely free to correspond at any link as many times as decided with any or all inmates, and to do so confidentially.

And that is the new policy that was the policy adopted by the director recently.

It was not in existence before.

This his attempt to experiment to find out means of getting information out without causing serious problems to disciplinary rehabilitation.

Justice Harry A. Blackmun: Is this because of the pressure of this litigation?

Mr. Bork: No, no.

I don’t believe so Mr. Justice Blackmun, if I am wrong, I will correct myself later.

I believe that policy was promulgated as a part of a general view of the --

Chief Justice Warren E. Burger: Well aren’t the Prison Bureau in Federal System at any event, aren’t this regulations being altered from time to time, and some changes almost every year in terms of administration?

Mr. Bork: That is entirely correct Mr. Chief Justice.

Chief Justice Warren E. Burger: The recent establishment of grievance procedure is something has been evolving for quite a long time, does it not?

Mr. Bork: It has been, and these policies are under constant review and discussion with the wardens and with other persons within the Central Office who have specialized knowledge, sociologist, psychologist, and so forth.

And experience causes modification in these policies, and the tendency now is towards more openness insofar as that can be done.

That’s a process that’s going forward I would hate to see it set in contrary all of the sudden by constitutional rulings.

A concept of a zone of reasonableness gives the system a little elbow room, a little play in the joints.

There is the correspondence.

Secondly, the press is given interviews freely by the wardens and the other personnel of the Bureau of Prisons.

Third, the press is free.

It is encouraged to tour the prisons and inspect any office, any and all facilities and equipment, and programs; and on such a tour there is no part of a prison that is close to the press.

They may go into the segregated facilities and they may converse with prisoners in segregation, as well as, with any other inmates they dropped into.

In fact, Mr. Bagdikian was offered an opportunity to do precisely that.

The inmates at a prison who had led us right we’re in segregation.

He was offered the chance to tour the segregated facilities, and converse with them not at length in-depth interviews but to converse with them.

He chose not to.

Fourth, members of the press may obtain interviews with groups of prisoners who are randomly selected.

Mr. Bagdikian was given such an interview with no prison officials present.

Now, members of the press of course may also interview any visitors who have been to see an inmate.

His lawyer, his family, his attorney, all of these persons may talk to the inmate in complete confidence and may then talk to the reporter.

And sixth, I think if we’re talking about general prison condition, it ought to be noted that members of the press may of course freely interview all of the inmates who are being released from prison, and that’s a constant flow of men at any one time, I think its approximately half of the entire federal prison population will be out within one year.

At Leavenworth for example, during fiscal 1973, 415 men were released which is an average of 34-35 men a month.

Now, most of those men are processed out from prison farms or halfway houses, but they under this new policy can be reached as soon as they leave Leavenworth and get into the halfway house or the prison farm.

So, we have a constant flow of inmates who can tell you immediately about the conditions they just left behind aside from the correspondence, the tours, and everything else was provided.

Although there are six channels of information that give the press, I think complete ability to learn what they want to know about prison conditions accurately and promptly.

Respondents’ brief refers to these rules as a dam against information.

I think this general rules, views and context, act more like a sieve.

Information comes out freely and easily and the only kind of journalistic technique, which is forbidden, is the one that raises severe problems for discipline and for rehabilitation.

Well, what’s left?

Respondents concede they may be properly denied interviews during times of riot or heighten tension in the prison.

So, what is really left in the First Amendment claim is the right to pre-select an inmate for a confidential interview when there isn’t riot or tension in the prison.

And in fact, does that usually mean the right to interview a celebrity.

Interview a Jimmy Hoffa, Phillip Berrigan, or to interview a disruptive inmate who has just made the news because he’s lead a work stoppage or a riot.

And it is the latter of course is particularly troublesome because that man becomes a leader by leading a trouble and then by broadcasting his inflammatory charges direct to the press.

And hardly enough, the very rule of respondents are arguing for would cut-off access to that man as soon he did it, because he would become the disruptive figure.

So, I think the rule you are asking for is really not a rule that makes a great deal of sense from anybody’s worth.

It ought to be said that it is very odd to claim this kind of right of access in the prison context.

The maximum and medium security prisons constitute the most tensed, volatile, violence-prone society I suppose on the face of the earth.

The Bureau of Prison simply cannot maintain discipline and effect rehabilitation, which they have done with increasing effect of us.

If press interviews are permitted to create or maintain disruptive inmate leaders, that much is conceded by the courts are blown and apparently by the respondents.

But they think a case-by-case approach will cure it, I don’t think so I think it would damage rehabilitation or harm discipline.

In the first place, there is inherent discrimination between inmates.

The man who is disruptive who they alienated who is hostile will not be allowed to have interviews, while man who says more pleasant things will be not because the warden is trying to control contents but you do get a control of content when you say the disruptive hostile alienated man cannot speak to everyone.

And you also get tension and unhappiness as between prisoners.

Furthermore, wardens are going to be required to guess under this new policy about who is likely to be dangerous.

Chief Justice Warren E. Burger: Under this new policy now?

Mr. Bork: At the Court of Appeals policy, Mr. Chief Justice.

It suggests they have to have some past experience with this man to believe that he is disruptive.

Well, they may have a subjective feeling that he is disruptive and he may be quite right.

But they are going to be required to guess, sometimes they are going to guess wrong, and you may have seriously harmful even tragic results.

And I would add this, even if a notorious inmate proves not disruptive within the prison.

It seems to me that constant press attention which could not be denied then if he was not disruptive is totally inconsistent with the idea of an opportunity for penitence and for rehabilitation.

A man who is -- becomes the object of the press and his opinions are cited everywhere is not likely to repent.

He will maintain his status and come out of the prison.

I was thinking once the same condition at least that’s what director of prisons thinks.

Finally, I will suggest that there’ll be increase litigation.

The Court of Appeals opinion suggest we have to have certain kinds of experience, it didn’t order to deny an interview, I think we’re going to have let the case made or record made and we are going to be at the courts all the time, and that’s a heavy administrative burden.

I will say one last word.

I think the First Amendment itself cuts against this case-by-case policy.

If the press has full access to the prisons, we are going to have to decide, who is the press?

Now, respondent say, you’ve already done that, you have a definition of the press.

That was a definition adopted as a matter of administrative discretion about constitutional pressure.

Once it is stated that the definition is controlled by the constitution then we have a government official.

In the first instance a warden of a penitentiary deciding who qualifies as the press and who does not.

That becomes something like an official licensing policy if made under the First Amendment, and I think that’s a concept, its an (Inaudible) to the First Amendment.

We submit in short that the considerations of the First Amendment, consideration to the prison context, considerations of the deference due to the Director of the Bureau of Prisons suggest that the case be reversed, and that the Director be allowed to go forward under the policy statement is promulgated.

Chief Justice Warren E. Burger: Very well, Mr. Solicitor General.

Mr. Califano.

Argument of Joseph A. Califano, Jr.

Mr. Joseph A. Califano, Jr.: Mr. Chief Justice, and may it please the Court.

The issue in this case is clear.

It is -- the question is does a reporter for a newspaper, Washington Post have a First Amendment right to interview a prison inmate when that inmate is willing to be interviewed and the interview presents no serious risk of administrative or disciplinary problems to the prison?

And secondly, there is no need to speculate as I believe the Solicitor General has done in many of his remarks this morning as to correctional problems as to the --

Unknown Speaker: [Voice Overlap] Court to find out.

Have you just defined the way the reasons for the rule?

You said and no serious administrative or correctional problem.

I thought that the basis for the rule was that it would lead to a serious problem?

Mr. Joseph A. Califano, Jr.: That the particular interview presents no serious --

Unknown Speaker: Well, that one would contribute to the assertion is that that face-to-face interview would raise serious problems along with others.

Mr. Joseph A. Califano, Jr.: Mr. Justice, we have in the record the testimony from several wardens including the Federal Prison wardens, including State Prison wardens, 19 states whose prison populations as the record indicates in this case --

Unknown Speaker: Well now, you’re just taking -- you’re addressing yourself to the merits of there is a problem.

Mr. Joseph A. Califano, Jr.: There is a problem.

Unknown Speaker: Okay.

Mr. Joseph A. Califano, Jr.: There is a problem.

Unknown Speaker: You go ahead.

Mr. Joseph A. Califano, Jr.: With respect to that problem why we’re on it, I would note that we do have in this record testimony from those wardens.

We do have in this record, the fact that 19 of the 24 American Jurisdictions whose regulations -- who have regulations that are introduced in the record, or may be the press interviews on a virtually without exception, or on a discretionary basis.

And we now have a situation in which the warden, at least that the lesser secure prisons of the Federal Government will have to make discretionary judgments because presumably in times of emergency, or in times of particular individual disciplinary problems they will not permit a particular interview.

That change in policy, I believes -- believe makes relevant to the Bureau of Prison’s policy with respect to the way man are assigned to the various prisons of the Bureau of Prisons, and that is their policy statement 7300.13 (c).

I would simply note for this Court that of the many, many reasons listed as to why individuals are assigned only one or two of them deal with security problems.

They deal with hospital care, the availability of training programs whether prisons are overcrowded, whether they are close to the home of the particular inmate involved.

So I would hardly consider the rational distinction in the context of a First Amendment right.

And lastly, I would note that the record contains the fact that the Federal Prison population is not a highly valuable-tensed prison population as the Solicitor General speculated, but that the bulk of the individuals in Federal Prisons are there for white collar crimes.

That’s the record in this case.

Chief Justice Warren E. Burger: Well, are they the people who are in the maximum security institutions, Mr. Califano?

Mr. Joseph A. Califano, Jr.: I think that some of them are.

We were just informed of this policy on Friday when we’re informed they would cover 13 institutions, and then we were given a list of this institution to suggest that they went, the list --

Chief Justice Warren E. Burger: How long before that policy?

Mr. Joseph A. Califano, Jr.: -- was increased to that 20.

Chief Justice Warren E. Burger: Isn’t that a matter as public knowledge that the assignment is made of more -- people talk to be more dangerous on certain established criteria in assigning them to the maximum-security institutions?

Mr. Joseph A. Califano, Jr.: There is testimony in our record as to how individuals are assigned surely the more dangerous people are assigned to the maximum security.

Chief Justice Warren E. Burger: It’s not just by definition, isn’t that the --

Mr. Joseph A. Califano, Jr.: But --

Chief Justice Warren E. Burger: They maybe wrong, they may make mistake in judgment, so I think Mr. Solicitor General considered that, but that’s at least the objective of the assignment as policy of the classification.

When they come in to an institution, they spend period of six or eight weeks studying the prisoner to try to determine where he should go and where he can best be rehabilitated if he can be at all.

Mr. Joseph A. Califano, Jr.: That’s correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: Now, assuming for the purposes of your case for the moment that the decision is a correct decision to send the man to a maximum security prison, then you say that there are no potential problem?

Mr. Joseph A. Califano, Jr.: I say there are no problems when we are talking about 75% of the Federal Prison population, which will still be subject to this total ban.

I say that there are no problems, serious enough to justify a total ban.

If there are problems at a particular institution at a particular time because it is on a high state of tension, or because there is disruption there, we recognize that the First Amendment values have to be weighed at those times and that the warden can make a judgment as the court, both courts below did that there would not be appropriate for an interview.

If there is a problem with a particular inmate, we recognize that it would not be appropriate to have an interview under circumstances in which he is a disciplinary problem.

Justice William H. Rehnquist: But I suppose --

Mr. Joseph A. Califano, Jr.: But we have testimony in the record.

I would note that Terra Haute, which is a maximum security prison.

Warden Aldrich testified that only at the top 10% of the prisoners of Terra Haute, the maximum security prison could be regarded as troublemakers, and of that, and then at most 5% would be entitled to this sort of nebulous majority of the “big wheel”, so that 80% of those prisoners that are not a problem.

Justice William H. Rehnquist: If you concede that in a time of emergency, you would not be entitled to go ahead with the proposed rule.

And yet even that would be litigated I suppose in the District Court if the warden says, we have an emergency here, the people who want the interview said, no, it’s not that kind of emergency, the District Court then decides?

Mr. Joseph A. Califano, Jr.: The District Court would then decide, I would simply note that in all the cases cited by the Solicitor General by us, in our case, and the other case that this Court heard prior to ours, that all the litigation deals with the total ban.

That with one exception, there is not a single case that I am aware of that deals with any of the 19 jurisdictions that were introduced in the record of the 29 jurisdictions in fact that have discretionary policies, or generally admit the permit interviews.

So, what I think that the litigation point is not a point of serious concern.

I would note that in the context of our record and the evidence it was submitted on the findings of the court below, all virtually, all of the evidence deals with maximum and minimum security prisons.

Those are the wardens who testified, those are the wardens who testified on our behalf.

We submit that it is our point that under Branzburg and Hayes, the news gathering was firmly hitched to the First Amendment by all nine justices and by all opinions in that case.

And that in that case, the court applied to news gathering, the same kinds of tests that is was applied to the right to publish and other protections guaranteed by the First Amendment.

Namely that the infringement of the protective First Amendment rights must be no broader than necessary to perceive, to achieve a permissible governmental purpose, and secondly, that a state’s interest must be compelling or paramount to justify even an indirect burden on First Amendment rights.

And we think that the -- in this case, in which the Government had two hearings, two opportunities to present evidence that they clearly did not establish that kind of a governmental interest.

We also believe as the Court of Appeals and the District Court found that the record provides substantial evidence, and uncontroverted testimony that face-to-face personal interviews are not simply another technique, but that they are essential to effective news gathering in the situation.

The Bureau of Prisons’ method of permitting an exchange of letters with the prisoner’s letters to the reporter not examined.

But to reporters’ letter to the prisoner examined for contraband and for content, which would incite a legal conduct is patently inadequate as far as the press is concerned, and if we think as far as First Amendment values are concerned.

The reporter has no opportunity to test the credibility of the prisoner or to follow up in his questioning.

Indeed, he does not have the assurance that the prisoner who is signing the signature block at that letter is the prisoner who is answering the questions he is writing to him about.

We all know that in prison life, one prisoner writes for another, one prisoner answers and helps other prisoners answer questions.

And I would note that such a policy makes an assumption that prisoners and inmates can read and write clearly.

And as the Chief Justice has noted the percentage of inmates in all institutions who cannot read or write is staggering.

We think the public interest in learning about prisons weighs heavily on the First Amendment scales, and they are with simply note that with there are more than 1.5 million Americans in prison in this nation on any given day.

Chief Justice Warren E. Burger: In prison or in jail --

Mr. Joseph A. Califano, Jr.: In incarceration.

In incarceration or jails on any given day, that the annual bill for American taxpayers of the Federal State in local level now exceeds $1 billion dollars for prisons.

And that the projective fiscal 1975 budget for the Federal Bureau of Prisons alone is more than one quarter of a billion dollars.

Chief Justice Warren E. Burger: How do you relate that to the First Amendment?

Mr. Joseph A. Califano, Jr.: We think Your Honor that the public, the fact that this are public institutions that the taxpayers of this country are paying for them that they are a significant part of our Government is a weight in the scale of the right of the public to know about what’s going on in our prisons.

We think that the right of the press here is essentially their right, as surrogates of the public to inform the public, and that that should weigh in the scales.

We believe that the record in this case, which I said, puts as in the position of not having to speculate does not justify a Government sweeping ban of the kind that here exist.

I mentioned the Warden Aldrich’s comments about Terra Haute.

I would mentioned that all warden directors who testified on the issue of “big wheels”, wardens Aldrich and Directors Wainwright and Bensinger, in the court below all testified that “big wheels” come in to prison “big wheels” or become “big wheels” in prison whether or not they are interviewed that what is involved here is a kind of negative leadership function.

They also noted that the prison officials are easily able to identify the disruptive prisoner.

Particularly in the Federal Prison system for the reasons that are mentioned by the Chief Justice in the context of the testing that now is on the more sophisticated psychological and aptitude testing, that now goes on in prisoners.

We do not think that there is any significant evidence in this record which indicates that press interviews creates disturbances at prisons.

There were three items of testimony in this area, in this case and one related to the warden or the head of the State Correctional System.

In Iowa, Mr. Brewer, he testified that during a period of tension, he was overruled by the governor who ordered him to permit press interviews and that these increase the tension in this institution.

There were still no violence at that institution, I might note, and moreover, Iowa still has a discretionary interview policy.

In the other -- the other instance mentioned was in the State of Florida in which a warden from the State of Florida said that some articles that were written created tension in Florida four months later where there was violence.

I think the causation when this Court looks at the record, the causation is highly tenuous, and the warden admitted that there were severe racial tension problems in his prison before any press interviews or articles actually were written.

In the context of the questions that have been raised by this court, I think in the context and attempt to define the press, I do not consider that a difficult problem.

The press is defined in many, many ways and if the Solicitor General is concerned about how the press is defined, he should be concerned about the fact that it’s defined by every department of this Government.

Everyday, the Justice Department has regulations defining what the press is, who is entitled to use their press facilities, who is entitled to go in there.

There are press definitions here and this is not proposed in the Bureau of Prisons, which are in existence in the Bureau of Prisons policy.

This is not a situation like Branzburg where we have an inherently unlimited number of people that might claim to be reporters.

In the Branzburg case, any individual at any given point of time might claim to be a reporter, claim to be entitled of the First Amendment rights, and therefore create a problem in terms of investigation by the Grand Jury where it witness a crime.

We don’t have that situation in this case.

In this case, there is a recognition by the press that there has to be some -- it has to be reasonable judgments made as they are made everyday by this Court, and who sits in its own press box.

Unknown Speaker: Who would make those judgments?

Mr. Joseph A. Califano, Jr.: I think in the -- those judgments would have to be made by the warden in the institution.

That’s what we would suggest to other Chief in the Bureau of Prisons.

Unknown Speaker: Would they be reviewable by the courts?

Mr. Joseph A. Califano, Jr.: I think in cases of severe abuse, they would be but I think that -- I mean the right -- the First Amendment right is a personal right, but it is not an absolute right.

It is subject to reasonable regulation.

That’s recognized in case after case by this Court, and one of the implications of as this for example, is that there will be a limited number of reporters in the courtroom during a trial.

And I do not think that that means that all reporters should at everyone who ever claims to be a reporter or every reporter for every established newspaper, or everyone should be banned from having interview, personal interviews with pre-identified inmates.

I would note that it is not simply a situation where the -- where we can speculate that the press will always want to interview the man creating the disturbance or always want to interview Jimmy Hopper.

Surely, they want to interview poeple that are celebrities, for example on television Saturday Night in CBS had an interview with Budd Crowe, who is out in Allan Wood at a time when the policy prohibited personal interviews and there he was photographed for 10 minutes.

But Mr. Bagdikian in the record of this case was not after people who had created a disturbance.

He was not after celebrities.

He was after group of people who have been selected to sit on a negotiating committee with the prison officials after a non-violent demonstration at Lewisburg and at Danbury.

And he wanted to find out as the record shows, why the problems were resolved in those prisons non-violently?

How that came about?

He was not after the “big wheel” if you will or the major celebrity.

My own closing with respect to this is that the -- as far as the Washington Post and Mr. Bagdikian is concerned and as our brief reflects.

It is our firm conviction that one of the reasons why prisons are in the condition that they are in today, the condition that’s been described by the Chief Justice many, many times is, because the First Amendment has not been permitted to operate.

The way it operates on Government, the way it operates in schools, the way it operates in virtually every other facet of our society.

The First Amendment has not been permitted to let a little sunshine in to those prisons, and let the reporters whose right becomes even more critical when the average American, when the citizen cannot walk through every prison in interview, every prisoner he desires, and let them go in to the prisons and get the story of the prisons out.

The First Amendment is part of that process.

I can understand as any one can that this policy is very convenient and very helpful for the warden, administrators, wardens and administrators in the Bureau of Prison System.

There isn’t a single member running in United States Government Department or Bureau, or court, or university, or anything in this country, or military base that would not be delighted to have a regulation that prohibited interviews in this context.

But that’s not what are system is all about, and that’s not what the First Amendment is all about.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Califano.

Do you have any further to Mr. Solicitor General?

Rebuttal of Bork

Mr. Bork: Mr. Chief Justice, and may it please the Court.

I would just rise to note that the Federal -- we here about the white-collar prisoners.

The Federal Prisons in fact are not staff entirely by white-collar criminal who just violated the antitrust laws systemwide.

50% of the prisoners are convicted of crimes of serious violence against the person on major narcotics traffickers who are also regardless of violence threat in the prison.

Those numbers are much higher in the maximum and medium security prisoners.

We are dealing with a dangerous and notable population.

The testimony of the wardens below -- the federal wardens said that they perceived on the experience of the States.

We have the experience of California which states it proceeded.

They perceived that this kind of interview was quite troublesome so that of course they have to rehabilitate and to maintain order.

It is always difficult to link one event with the result in human activity.

There best judgment is that there is such a link, California’s best judgment isn’t the reason to make.

I think that’s a judgment they are entitled to make.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.