The opinion
HAMLIN, Circuit Judge
(concurring) :
For the reasons expressed in the majority opinion I concur in the holding therein that section 415.071 is not violative of the rights of the news media.
I concur also in the holding in that opinion that said section is violative of the rights of the plaintiff inmates, but I do so on a different basis.
The majority examines the constitutionality of the regulation prohibiting inmates from requesting interviews with the news media under the “compelling interest” test, applicable to First Amendment restrictions in society at large.
However, in Seattle-Tacoma Newspaper Guild, Local #82 v. Parker, 480 F.2d 1062 (9 Cir. 1973), the Ninth Circuit Court of Appeals eschewed the “compelling interest” test as applied to First Amendment restrictions in the prison context, and substituted therefor the “rational basis” analysis:
“ * * * the Bureau of Prisons has given considerable study to the disruptive effects of prisoner interviews on prison administration, and has concluded that the ban on interviews is necessary to maintain the discipline, custody and control of the prison. We are unable to say that that conclusion ‘lacks support in any rational and constitutionally acceptable concept of a prison system.’ (citation omitted). We find that the interview ban is reasonable action within the scope of the wide discretion of the prison administrators and that it does not violate the prisoners’ First Amendment rights.” (citation omitted.) Id., at 1065-1066 . (emphasis added.) See also, O’Malley v. Brierley, 477 F.2d 785 (3 Cir. 1973); Morales v. Schmidt, (7 Cir. January 17, 1973.)
While the specific factual situation in Seattle-Tacoma differs from the instant case, it is my conclusion that the Seattle-tacoma rationale is herein controlling.
But even under to broader “rational basis” analysis, the blanket prohibition of inmate interviews with the media must fall. As the majority notes, there is insufficient evidence in the record to substantiate such a complete ban.
The defendants may, of course, refuse to permit specific inmates in specific circumstances from conducting interviews with the media, where legitimate reasons exist.