Bailey v. Loggins

Opinion

BROUSSARD, J.

Defendants appeal from a judgment mandating them, as officers of the Department of Corrections: (a) to permit publication of two articles in the Soledad prison newspaper, the Star News; (b) to formulate guidelines limiting administrative censorship of the Star News to matters which would reasonably be deemed a threat to institutional security or which described the making of a weapon or other dangerous device; and (c) to formulate regulations for expeditious review of controversies concerning inmate articles. Since defendants no longer object to publication of the articles in question, that portion of the controversy is moot. The principal questions before us concern the nature of the regulations and the adequacy of procedures for reviewing a decision barring publication of an article.

1. History of this litigation.

The Star News is an inmate newspaper written, edited and published at the state prison at Soledad. It is financed by the inmate welfare fund, not by the taxpayers.¹ The trial court’s findings described the publication: “A representative copy of the Star News Admitted into Evidence by stipulation as Exhibit A contained an editorial page, prepared by an inmate editor, a credit section by the Department of Corrections, and a ‘disclaimer’ section indicating that the views expressed in the paper do not reflect those of the Administration or other parties but are solely the expressions of the individual author-writer ‘and should not be construed in any other manner.’ ” The court found a representative copy of the Star News to contain articles promoting the interests of different groups as well as material critical of prison administration.

In September of 1976 Willie Brandt, an inmate at Soledad, submitted two articles for publication in the Star News. One related to a lecture given at Soledad by Professor Amundson of the Institute of Industrial Relations at the University of California; the other concerned a lecture by Ms. Lytle, deputy legal affairs secretary to the Governor. Petitioner Bailey, inmate editor of the Star News, and Mr. Estin, the civilian journalism instructor, approved the articles for publication.

The Star News then submitted the articles to Associate Superintendent Dobreff, designated as supervisor of the content of the newspaper. He rejected the articles, as did the acting superintendent and his staff. Pursuant to the grievance procedures of the institution, editor Bailey filed an appeal from that decision requesting both that the authorities grant permission to publish the articles and that the Department of Corrections establish guidelines to govern the control of content of the newspaper.

Reviewers at the first and second level rejected Bailey’s appeal. Finally, on February 1, 1977, respondent Enomoto, as Director of Corrections, sent a letter to editor Bailey explaining his ruling on the appeal, granting the request for guidelines, and adopting regulations 413.08, 413.10 and 413.11 of the department’s administrative manual to govern publication of the Star News.² He then denied the request for publication of the articles, citing the portion of regulation 413.11 which states that prison newspapers shall not “be used to . . . attack any law, rule or policy to which inmates or employees may object . . . Grievances . . . will be given consideration when called to attention through designated channels, and institutional publications shall not be used for that purpose.” Apparently because the articles spoke favorably of collective organization and bargaining by the prisoners, the director concluded that they “constituted a subtle—or perhaps, not so subtle—attack upon administration” and thus violated regulation 413.11.

The guidelines adopted as department regulations provided generally that the newspaper should conform to good journalistic standards, be designed to appeal to all inmates, and avoid material offensive to racial, religious, or political groups. As noted in respondent Enomoto’s letter, the guidelines prohibited the use of the newspaper to attack administration rules or policy, or to assert any grievance. They also banned the assumption of an editorial position on pending legislation, the attempt to elect or defeat any official, or an attack upon existing governmental policy.

On April 28, 1977, Bailey, as editor of the Star News, and the Prisoners Union, as a subscriber to that newspaper, brought the present mandamus action. During trial the Department of Corrections promulgated new and more complete regulations, published as regulations 720 through 726 of the department’s administrative manual. The new provisions, in regulations 723 and 724, incorporated former regulations 413.08, 413.10, and 413.11 without change.³ (Reference in this opinion to “regulations,” unless otherwise identified, refers to those in effect at the time of trial.) After briefing and argument, the trial court concluded that the regulations in question were overbroad, and that regulations limiting the content of the newspaper were permissible only to protect institutional security. It then issued a peremptory writ mandating publication of the two articles and directing the enactment of regulations “which limit censorship of articles to publications of matters which if published would reasonably be deemed a threat to the security of the institution ... or which describes [sz'c] the making of any weapon, explosive, poison or destructive device.” The trial court also found that the existing appeal procedure was inadequate,⁴ and mandated enactment of regulations “ensuring expeditious review of censored articles for the prison newspaper. ”

Defendants appealed and secured a stay of the trial court’s order. During the appeal, the Department of Corrections revoked the detailed guidelines of regulations 720 through 726, and adopted two regulations which simply provided generally for administrative control of prison publications.⁵

After the Court of Appeal affirmed the judgment, we granted a petition for hearing. While the case was pending here, the Department of Corrections adopted additional new regulations, again numbered as regulations 720 through 726 of its administrative manual. The new regulations closely resemble the previous regulations, bearing the same numbers, in effect at the date of trial.

With the passage of time, the controversy concerning publication of Willie Brandt’s articles has abated. Defendants no longer object to publication. The remaining issues raised by this case—the power of the department to reject an article submitted for publication and the process of appealing that decision—are still issues of current controversy. The order of the trial court addresses those issues and requires the department to enact new regulations. Thus although the specific dispute concerning the two articles has dissipated, the question of the validity of the trial court’s order is not moot but ripe for judicial resolution.

2. Editorial control of the prison newspaper by the department.

Penal Code sections 2600 and 2601 govern the rights of inmates in California prisons. Section 2600, the pertinent section in this case, provides that “[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.” Thus by statute California prisoners retain all rights encompassed under the heading of the freedom of the press in the First Amendment to the United States Constitution and article I, section 2 of the California Constitution, except to the extent that such rights must be curtailed for institutional security and public safety.

Consequently, established principles of constitutional law apply in defining the rights of prisoners. Among those principles is the rule that the state, having opened a forum for the expression of ideas, may not prevent members of its public from using the forum because the state disapproves of their beliefs or the content of their expression. (Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51 [64 Cal.Rptr. 430, 434 P.2d 982]; Cox v. Louisiana (1965) 379 U.S. 536, 557 [13 L.Ed.2d 471, 485-486, 85 S.Ct. 453].) Another is the doctrine that the state may not condition the exercise of a privilege, including the privilege of using state property, on the renunciation or nonexercise of constitutionally protected rights. Danskin v. San Diego Unif. Sch. Dist. (1946) 28 Cal.2d 536 [171 P.2d 885]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 257-258 [172 Cal.Rptr. 866, 625 P.2d 779].)

The application of these principles to a prison newspaper depends upon the purpose served by that publication, the governing regulations, and the practice of the prison authorities in applying those regulations. It is clear, to begin with, that the prison need not establish any publication whatever. (The Luparar v. Stoneman (D.Vt. 1974) 382 F.Supp. 495.) It can give journalism classes without publishing or distributing the inmates’ work. It could also use inmate labor to produce a “house organ” in which the only views expressed were those of the administration. Had it chosen any of these options, no constitutional issues would likely arise.

The department, however, chose to establish a newspaper which serves as a limited forum for prisoner expression. Understandably, the regulations emphasize the limitations, not the forum. The newspaper should serve the purpose of educating and training the inmate, disseminating information furnished by the administration, and informing inmates of events within the institution; it is designed only to “supply inmates with news happenings within the institution and department.” (Reg. 721.) It should appeal to all inmates and not be devoted to the interests of one particular group. (Reg. 723.) It must conform to good journalistic standards—including accuracy, impartiality, good taste, avoidance of obscenity and defamatory matter. Commercial materials may not be published. Nor may the paper carry the name or identifiable photograph of a prisoner without that person’s written approval. (Reg. 725.) The regulations further preclude material that is offensive to any race, nationality, religious faith, political party or other “group of reputable citizens.” (Reg. 723.) To enforce these limitations, the warden may designate a civilian journalism instructor or other outside person to be responsible for supervising inmates in preparing and publishing the paper and who is to participate in planning as well. Finally, the department seeks to retain ultimate control over the content of the paper through a supervisory or administrative employee appointed by the warden or superintendent. (Reg. 720, subds. (d) and (e).)

In spite of these restrictions, however, it is clear that an important communicative purpose is served by this institutional publication. The paper was and is freely circulated among the inmates and staff of the institution where published. In addition, subscriptions may be accepted from individuals, organizations or agencies “outside” which are involved in prison work or have a particular interest in the field. Prisoners’ families are presumably included here, as one of the purposes of the publication is to develop their morale. Finally, the exchange of papers between institutions in the department is specifically encouraged by the department itself. (Reg. 772, subds. (b) and (c).)

The department’s own regulations make it clear that the department contemplated that the institutional publication it authorized would include expressions of prisoners’ ideas and views. Thus it saw fit to define and proscribe the kinds of ideas that would be improper. Contributors may not seek special favors from institutional or public officials; publications may not take an editorial position on pending legislative matters, current elections or attack governmental policy. Nor may the columns of the publication “be used to further the personal interest or ambitions of any inmate, employee, or official . . . [or] ... to promote special privileges for inmates or to attack any law, rule, or policy to which inmates or employees may object.” (Reg. 724.)

Department practice further demonstrates the expressive and communicative role of the Star News. The department has chosen to permit publication in a format which closely resembles an ordinary newspaper published outside prison walls and fully protected by the state and federal Constitutions. In applying its regulations, it has permitted numerous articles which express the views of the inmate authors. Although the trial court found that regulation 724, if broadly interpreted, “would prohibit any favorable or negative statement, express or implied, and almost any reference to any particular person, group, or idea” (italics in original), a representative copy of the Star News contained articles promoting the interests of a number of special groups, including articles entitled “Mormons,” “Women’s Quest for Rights Benefits All,” and “Why Believe in God?” It is apparent that each of these articles expressed the views of its author and conceivably could have been excluded pursuant to a broad reading of regulation 724. The issue also contained a poem critical of the Adult Authority (“Doin a One to Ten with a Grin”) and an article entitled “Warden’s Opposition Sinks Plans for Con’s Meet-Confer Rights,” titles which might be construed as attacks on institutional policy. The department made no objection to the content or inclusion of any of these articles.

The trial court further found the paper contained an editorial page prepared by the inmate editor, a credit section containing no indication that the department retained editorial control, and a disclaimer specifically stating that the views expressed in the paper are solely those of the individual authors. In sum, the factual findings of the court below support the conclusion that the department regulations permitted expression of inmates’ views on topics falling within the approved purposes of the newspaper.

We therefore cannot accept defendants’ attempts to characterize the Star News as a publication which does not fall within constitutionally protected expression. As we have seen, although “one primary purpose” of the publication is to teach inmates the skills of journalism and printing (reg. 721), the Star News is not merely a class assignment or a “practice” newspaper. It is distributed within and without the prison, and used by the administration and the inmates to communicate to the readers.

Neither can the publication be described as a “house organ.” The current regulations offer a choice—the prison may “publish some form of newspaper or ‘house organ’ ” (current reg. 720, subd. (a); see reg. 720), and scrutiny of the regulations and of the practice of the administration demonstrates that it has chosen the alternative of a limited-purpose newspaper.⁶ The fact that the administration insists on a disclaimer asserting that the views expressed in the paper are not those of the administration but solely the expression of the inmate writer is particularly significant—a house organ is, by definition, a publication in which the views expressed are those of the administration, and not those of inmate writers.

The issue before us, consequently, is whether a prison newspaper intended to serve and serving as a limited forum for prisoner expression enjoys any protection under the First Amendment or correlative California provisions. Two federal decisions address the First Amendment issue directly. In The Luparar v. Stoneman, supra, 382 F.Supp. 495, the prison administration sought to restrict distribution of an inmate newspaper printed in the prison and partially supported by state funds. Citing Procunier v. Martinez (1974) 416 U.S. 396 [40 L.Ed.2d 224, 94 S.Ct. 1800], the Luparar court ruled that prison regulations permitting censorship of prison newspapers “must be no broader than is necessary to protect the legitimate governmental interests of prison security, prison order and prisoner rehabilitation.” (P. 501.) Rejecting the contention that state financial support of the paper permitted the state, as publisher, to exercise complete control over its contents, the court stated that “[t]he 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.” (P. 499.)

In Pittman v. Hutto (4th Cir. 1979) 594 F.2d 407, the Fourth Circuit considered the question of censorship of an inmate magazine, and held that “prison officials may limit first amendment rights, whether of speech or association, whenever they reasonably conclude that the exercise of such rights possesses the likelihood of disruption of prison order or stability or otherwise interferes with the penological objectives of the institution.” (P. 411.) But although Pittman thus extends greater deference to administration judgments than did The Luparar, the two cases essentially agree that the administration cannot exercise arbitrary control; censorship can only be imposed to protect prison order and security, or to further some substantial state interest. (See Note, The First Amendment Rights of Prison Newspaper Editors (1979) 65 Va.L.Rev. 1485, 1488-1492.)

The cases do not support defendants’ contention that because a “prison is most emphatically not a ‘public forum’ ” (Jones v. North Carolina Prisoners’ Union (1977) 433 U.S. 119, 136 [53 L.Ed.2d 629, 645, 97 S.Ct. 2532]), prisoners enjoy no protected rights in connection with a prison newspaper. The quoted language from Jones is concerned with an asserted right of prisoners to convene meetings among themselves and with members of the public—a matter not at issue here. Jones did not involve a prison newspaper, and nothing in that opinion indicates that a newspaper cannot serve as a forum for prisoner expression. And although the cases which do involve prison newspapers differ on the extent of discretionary control granted the prison administration, all recognize that prison administrators do not have total and arbitrary power, but that First Amendment values appropriate to expressive forums enter into the balance. (See Pittman v. Hutto, supra, 594 F.2d 407, 411; Gray v. Creamer (3d Cir. 1972) 465 F.2d 179, 186; The Luparar v. Stoneman, supra, 382 F.Supp. 495, 499-501; Payne v. Whitmore (N.D.Cal. 1971) 325 F.Supp. 1191, 1193.)

We also reject the claim that the state as publisher enjoys the same total control over the content of the newspaper as a private publisher. (See Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 255 [41 L.Ed.2d 730, 739-740, 94 S.Ct. 2831].) That contention overlooks the critical distinction between a government as publisher and a private publisher. (See Shiffrin, Government Speech (1980) 27 UCLA L.Rev. 565.) When identical claims based on the state’s right as publisher have been asserted to justify censorship of high school and college newspapers, the courts have emphatically rejected those claims. A state university—and the same is true of the Department of Corrections—“is clearly an arm of the state and this fact will always distinguish it from the purely private publisher as far as censorship rights are concerned.” (Bazaar v. Fortune (5th Cir. 1973) 476 F.2d 570, 574, affd. 489 F.2d 225; see also Healy v. James (1972) 408 U.S. 169, 187 [33 L.Ed.2d 266, 283, 92 S.Ct. 2338].)⁷ The prison newspaper cases cited earlier reach the same conclusion: that the state, having established an activity which has the elements of free expression, must take account of First Amendment considerations in restricting that expression.⁸

In conclusion, departmental regulations and institutional practices have established an inmate newspaper which clearly does permit expression and communication of prisoners’ views within the purview of the somewhat limited purpose for which the paper was established. Because both regulations and practice contemplate the paper will include expression of ideas, decisions to exclude particular articles which have been judged publishable by the editor must be scrutinized under the First Amendment.

First Amendment values are implicated under two traditional theories. First, since the Star News functions as a public forum for the expression of ideas within the limited scope of the paper’s purposes, the state may not infringe the right of free expression within the parameters of the forum. (See Wirta v. Alameda-Contra Costa Transit Dist., supra, 68 Cal.2d 51.) Under this analysis the department may censor newspapers in order to provide for the reasonable security of the institution and the reasonable protection of the public. (Pen. Code, § 2600; see Procunier v. Martinez, supra, 416 U.S. 396, 413 [40 L.Ed.2d 224, 230].) It may also exercise control over the content of the newspaper to serve valid penological objectives. (See Procunier v. Martinez, supra, 416 U.S. 396, 413 [40 L.Ed.2d 224, 240]; Pittman v. Hutto, supra, 594 F.2d 407, 412; Note, op. cit. supra, 65 Va.L.Rev. 1485, 1497.)⁹ But it cannot do so merely because it disagrees with the views presented, objects to inmate criticism of administration policy, or seeks to avoid discussion of controversial issues. (The Luparar v. Stoneman, supra, 382 F.Supp. 495, 499; see Procunier v. Martinez, supra, 416 U.S. 396, 415 [40 L.Ed.2d 224, 241]; Guajardo v. Estelle (5th Cir. 1978) 580 F.2d 748, 761; Joyner v. Whiting (4th Cir. 1973) 477 F.2d 456, 460; Pliscou v. Holtville Unified School Dist. (S.D.Cal. 1976) 411 F.Supp. 842, 847; Antonelli v. Hammond, supra, 308 F.Supp. 1329; Dickey v. Alabama State Board of Education (M.D.Ala. 1967) 273 F.Supp. 613.) Thus, regulations should be drafted with sensitivity to First Amendment values, and with a view to avoiding restrictions unnecessary to any institutional or penological purposes.

Second, in 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. (Cf. Pell v. Procunier (1974) 417 U.S. 817 at p. 828 [41 L.Ed.2d 495 at pp. 504-505, 94 S.Ct. 2800].) Indeed, these regulations resemble those struck down in Procunier v. Martinez, which provided such “extraordinary latitude for discretion” as to “fairly invite[] prison officials and employees to apply their own personal prejudices and opinions as standards for [] censorship [of prisoner correspondence]” and are susceptible of being applied to suppress unwelcome criticism. (416 U.S. at p. 415 [40 L.Ed.2d at p. 241].)

Since the regulations considered at trial are no longer in effect, and in the absence of any remaining controversy over publication of any particular article, it is not necessary to determine whether any past or current regulation is invalid facially or as applied. Instead, we need only emphasize to prison administrators that their regulations must be framed and applied uniformly with due regard for constitutionally protected rights of free expression, and in accord with the standards of Procunier v. Martinez, supra, 416 U.S. 396, and Penal Code section 2600. The department should be allowed to determine whether this can best be achieved by fashioning less restrictive or more precise regulations governing criteria for publication of articles.¹⁰

3. Appeal of departmental decisions.

Newspaper articles often must be published within a few days of the event they describe, or the articles will lose all value as reportage of current events; delay is often as effective a form of censorship as suppression of the article. Consequently, as the court explained in The Luparar v. Stoneman, supra, 382 F.Supp. 495, 502, “[t]he prison administration must . . . ensure an expeditious review procedure. To be valid, the regulations must prescribe a definite brief time within which the review of submitted material will be completed.”

Both the appeals procedure in effect at the time of the rejection of the Brandt articles, and the modified procedure in effect now, provide for three levels of appeal, and permit a period of 45 days between the initial grievance and the final decision (with additional time for extraordinary cases). Neither set of regulations distinguishes cases involving rejection of newsworthy articles from other prison grievances. We therefore agree with the trial court that the prison grievance and appeals procedure is not one suitable for occasions when timeliness and First Amendment considerations are implicated, and that the department should enact rules providing for immediate review.

4. Conclusion.

The department regulations and practices evidence an intention to allow publication of a prison newspaper which serves several purposes: aiding the education and morale of the prisoners; providing information from the administration and on events within the institution; and providing a limited forum in which prisoners can express their views and opinions on matters affecting them. Consequently, although the department retains greater powers to regulate and censor then would be appropriate outside the prison walls, it does not have total or arbitrary power, but must exercise its authority even-handedly and, with sensitivity to the values protected by the First Amendment and corresponding California constitutional and statutory provisions.

We emphasize that the department may regulate the content of the newspaper, and may ban the publication of particular articles, if it perceives a threat to institutional security. The department may also assert its authority to achieve other legitimate penological objectives, such as vocational training of the person working on the paper and the publication of news important to the inmate community. And in all such matters, the courts give deference to determinations by prison officials that restrictions are essential to protect a legitimate state interest. (Pell v. Procunier, supra, 417 U.S. 817, 827 [41 L.Ed.2d 495, 504]; Jones v. North Carolina Prisoners Union, supra, 433 U.S. 119, 126 [53 L.Ed.2d 629, 638-639].)

In deference to the responsibilities and authority of the department, we reverse the order of the trial court mandating the enactment of new regulations limited to protection of institutional security. In the absence of any remaining controversy over the publication of any specific articles, we think it sufficient to explain to the department that in the drafting and enforcement of regulations governing the content of the newspaper it should act in a consistent and evenhanded manner, and with due regard for the First Amendment values.

We agree, however, with the trial court that the present regulations are deficient in failing to provide a speedy method of appealing and reviewing a department decision barring publication of an article. Because articles may cease to be newsworthy in a short period of time, expeditious review is essential, and the regulations should be revised to provide such review.

The portion of the order of the superior court directing publication of the two articles at issue, and requiring the department to enact administrative regulations ensuring expeditious review of administrative decisions barring publication of particular articles, is affirmed. The portion of the order directing enactment of new administrative regulations which would permit censorship only of articles which could reasonably be deemed a threat to the security of the institution or which describe the making of a weapon, explosive, poison, or destructive device, is reversed. Each party shall bear its own costs on appeal.

Reynoso, J., concurred.

NEWMAN, J., Concurring.—(lb), (2b), (3c), (4b) I read the lead opinion as holding that, except when necessary to provide for reasonable security or reasonable public protection, the Department of Corrections no longer may concretize clauses like those of regulation 723 that are identified in footnote 10 of the opinion. Therefore I concur.

I would, though, rely not on the First Amendment of the federal Constitution but on sections 2, subdivision (a) and 3 of article I of the California Constitution. (See In re Reynolds (1979) 25 Cal.3d 131 [157 Cal.Rptr. 892, 599 P.2d 86]; In re Brandt (1979) 25 Cal.3d 136 [157 Cal.Rptr. 894, 599 P.2d 89]; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [153 Cal.Rptr. 854, 592 P.2d 341].)

Further, I do not agree that Penal Code section 2600 permits any restraints or abridgments of speech, press, and petition rights that can be justified only by referring to “good” journalistic standards or “valid” penological objectives. In my view the Legislature has required that those standards and objectives be based on either security or public protection.

BIRD, C. J., Concurring.—(lc), (2c), (3d), (4c) I write separately to emphasize two points. While the majority opinion, with which I concur, refrains from formally striking down any particular existing regulation, the department may not reissue regulations substantially similar to those which have been presented to this court. As the majority opinion makes clear, the regulations issued hereafter must comport with the First Amendment principles applicable to state publications generally (except as provided by Pen. Code, § 2600).

1 Revenues for the inmate welfare fund come from purchases at the prison canteen, purchases of handicraft materials, and extra charges on the sale of inmates’ art works. (See In re Van Geldern (1971) 5 Cal.3d 832, 836 [97 Cal.Rptr. 698, 489 P.2d 578]; Pen. Code, § 5006.)

2 The cited guidelines read as follows:

Section 413.08: Standards

“Publications should be written, illustrated and published as nearly in accord as possible with good journalistic standards.

“Publications should be so designed as to appeal so far as possible to all inmates. It shall not be devoted to the interests of a particular group. Great care should be taken to insure the accuracy of all information published. Great care should be taken to insure the impartiality and good taste of articles and illustrations published.”

Section 413.10: Prohibited Material

“Every effort will scrupulously be made to avoid the publication of any material offensive to any race, nationality, religious faith, political party or other group of reputable citizens. No obscene, lewd, pornographic, suggestive, libelous or defamatory matter shall be published.”

Section 413.11: Misuse of Publication

“The columns of institutional publications shall be free from material seeking special favor with institutional, departmental, or state officials, and shall not be used to further the personal interest or ambitions of any inmate, employee or official. Neither shall the columns of such publication be used to promote special privileges for inmates or to attack any law, rule, or policy to which inmates or employees may object. Grievances will be given consideration when called to attention through designated channels, and institutional publicatons shall not be used for this purpose.

“Institutional publications shall not take an editorial position on matters pending before the Legislature, nor urge the support or defeat of any legislation nor urge the election or defeat of any public official, nor attack existing governmental policy.”

3 The regulations in effect at date of trial read 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.

“(c) Institutional publications shall be edited and printed as part of the educational and vocational training programs of the institution where possible.

“(d) Supervision of inmates preparing and publishing inmate newspaper is the responsibility of a civilian instructor in journalism or some other suitable person designated by the warden or superintendent. The person so designated will participate in the planning of each issue.

“(e) Supervision of the content of the newspaper is the responsibility of a person at a supervisory or administrative level designated by the superintendent or warden and approved by the director.

“Sec. 721. Purpose of Publication. Each institutional publication shall be conducted in accordance with the following principles:

“(a) It shall have educational and training value for participating inmates.

“(b) It shall be an aid to the development of good morale among the inmates and their families.

“(c) It shall be used for the dissemination to the inmates of information from the administration.

“(d) It shall supply inmates with news happenings within the institution and the department.

“Sec. 722. Expense and Circulation, (a) The expense of publication must be met from inmate welfare funds.

“(b) Subscriptions outside of the institution may be accepted from individuals, agencies, or organizations engaged in activities related to prison work, or from individuals who have a particular interest in the field. Solicitation of subscriptions is prohibited.

“(c) Exchange or free circulation shall be limited to schools, libraries, proper state agencies, other prisons, or where it may be to the obvious advantage of the department or the institution. . . .

“(d) The exchange of inmate newspapers between institutions of the department is encouraged.

“Sec. 723. Standards, (a) Publications should be written, illustrated and published as nearly in accord as possible with good journalistic standards.

“(b) Publication should be so designed as to appeal so far as possible to all inmates. It shall not be devoted to the interests of a particular group. Great care should be taken to insure the accuracy of all information published. Great care shall be taken to insure the impartiality and good taste of articles and illustrations published.

“(c) No advertising material of a commercial nature shall be printed in an institutional publication.

“(d) Every effort will scrupulously be made to avoid the publication of any material offensive to any race, nationality, religious faith, political party or other group of reputable citizens. No obscene, lewd, pornographic, suggestive, libelous or defamatory matter shall be published.

“Sec. 724. Misuse of Publication, (a) The columns of institutional publications shall be free from material seeking special favor with institutional, departmental, or state officials, and shall not be used to further the personal interest or ambitions of any inmate, employee, or official. Neither shall the columns of such publication be used to promote special privileges for inmates or to attack any law, rule, or policy to which inmates or employees may object. Grievances will be given consideration when called to attention through designated channels, and institutional publications shall not be used for this purpose.

“(b) Institutional publications shall not take an editorial position on matters pending before the Legislature, nor urge the support or defeat of any legislation nor urge the election or defeat of any public official, nor attack existing governmental policy.

“Sec. 725. Use of Names or Photographs, (a) The use of the name or an identifiable photograph of an inmate in an inmate publication shall be at the discretion of the individual and the institution. . . .

“(b) In the event that institution policy permits the publication of such names, no such name shall be used if the inmate objects and no such picture shall be published without the approval in writing of the person involved. ...”

4 The grievance procedure, described in In re Muszalski (1975) 52 Cal.App.3d 500, 506-507 [125 Cal.Rptr. 286], provides for three levels of appeal. Regulation 110 of the department’s administrative manual provides that: “First level reviews must be processed and returned to the inmate/parolee within ten working days after receipt. . . . Second level reviews will be processed and returned to the inmate/parolee within 15 working days of receipt, [f] If exceptional delays prevent closure within the specified time limits, the inmate/parolee will be informed in writing of the reasons for the delay and given an estimated completion date.”

5 The regulations promulgated April 26,1978, and in effect when this case was decided by the Court of Appeal and first argued before this court, read as follows:

3250. General Policy. “Institutions may publish a newspaper, magazine, or newsletter as specifically authorized by the warden or superintendent.”

3251. Participation. “Inmates may participate in the publishing and distribution of an institution publication when specifically approved to do so by the warden or superindent.”

6 We note that the same “house organ” argument presented in this case was raised by the school board to defend censorship of a high school newspaper in Gambino v. Fairfax Cty. Sch. Bd. (E.D.Va. 1977) 429 F.Supp. 731. The opinion states: “The defendants rely on the contention that The Farm News is not a public forum entitled to First Amendment protection. They argue that the newspaper is essentially an ‘in-house’ organ of the school system . . . [f] While the state may have a particular proprietary interest in a publication that legitimately precludes it from being a vehicle for First Amendment expression, it may not foreclose constitutional scrutiny by mere labelling. [Citation.] Once a publication is determined to be in substance a free speech forum, constitutional protections attach and the state may restrict the content of that instrument only in accordance with First Amendment dictates.” (P. 734.)

7 Three federal district court decisions further develop this theme. In American Civil Liberties Union of Va. v. Radford College (W.D.Va. 1970) 315 F.Supp. 893, the court ruled that a state university cannot “support a campus newspaper and then try to restrict arbitrarily what it may publish, even if only to require that material be submitted to a faculty board to determine whether it complies with ‘responsible freedom of the press.’ ” (Pp. 896-897.) In Antonelli v. Hammond (D.Mass. 1970) 308 F.Supp. 1329, the court observed that “[w]e are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is part of the university structure and is financed with funds controlled by the administration.” (P. 1337.) Finally, in Gambino v. Fairfax Cty. Sch. Bd., supra, 429 F.Supp. 731, the court rejected the argument that because high school students are less mature, the board as publisher of a high school newspaper had total control over its content. “While the scope of constitutional freedom may vary with the nature of the environment and the maturity of the individuals affected, the considerations governing the applicability of First Amendment analysis in the first instance does not change. Either the First Amendment is operative, or it is not. And if it is applicable, only then does the distinction between the extent to which speech is protected . . . become significant.” (Pp. 734-735.)

8 A prison, of course, is not a college campus. The penological objectives of the institution and the demands of insitutional security justify greater restrictions on prisoner speech than would be permissible in an educational institution. But when the state bases its argument not on considerations of institutional objectives and security, but on the claimed right of a publisher to control the content of anything it publishes, the distinction disappears.

9 Since one purpose of publication of the Star News is vocational training, the department can insist on standards of good journalism—that articles be grammatically correct, that reporters verify their stories, that editorial opinion be distinguished from factual reporting, etc. Another purpose is to present information of importance to the inmate community; thus, the department can also insist that the newspaper report announcements and events of interest to its readers.

10 Three provisions in current regulation 723 warrant reconsideration. Subdivision (a) provides in part that “[n]o material will be published which could . . . subject the institution, as publisher, to public censure or disrepute.” Subdivision (b) provides that “[rjeports and articles will not. . . serve as a vehicle for grievances or complaints ...” Finally, subdivision (f) provides that “[¡Institutional publications shall not take positions on matters pending before the Legislature, or urge the support or defeat of any public official.”

The right to criticize government administration, and to take positions on current political controversies, lies at the core of the First Amendment. Accordingly, the department should reconsider whether the quoted regulations are in fact necessary to promote institutional security or to further some other legitimate interest, and whether some less restrictive regulation would suffice. We are confident that in revising and applying its regulations, the department will follow the guidelines set forth in this opinion.