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October 28, 1971

David BURNHAM et al., Plaintiffs,
Russell G. OSWALD, New York State Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent, Attica Correctional Facility, Defendant

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

On March 25, 1971, the plaintiffs instituted a lawsuit against the defendants seeking an order of this court permitting press interviews of inmates in New York State correctional facilities. During the summer of 1971, the parties voluntarily discussed the issuance of rules permitting press interviews, and, on July 15, 1971, the Department of Correctional Services issued "Administrative Bulletin # 9," entitled "Policy Statement and Guidelines on Release of Information to and Cooperative Effort with the News Media by Department of Correctional Services Personnel" *fn1" [hereinafter referred to as the "Guidelines"]. After the issuance of the Guidelines, there was no further court activity until September 28, 1971, when the plaintiffs made the pending application for limited preliminary relief.

 Under the Guidelines, press interviews with inmates were allowed from July 15 to September 9, 1971. During that period, no newsman's request for an interview was denied. On September 9, because of the riot at Attica Correctional Facility, Superintendent Vincent R. Mancusi declared a state of emergency at the facility. From September 9 to September 12, limited interviews by pool reporters were permitted in the besieged D Block area. Since the riot was quelled on September 13, Mr. Mancusi and other state authorities have denied newsmen's requests for interviews with inmates at Attica.

 The repeated denials led to plaintiffs seeking and obtaining, on September 28, an order to show cause why an order should not be entered permitting "journalists the right to interview inmates of Attica Correctional Facility who wish to speak with them."

 On October 7, 1971, the court held a hearing at which the plaintiffs presented the testimony of six reporters and the defendants the testimony of Superintendent Mancusi. The plaintiffs' witnesses were Fred Ferretti of the New York Times, Robert Schakne of CBS News, James Willwerth of Time, Clarence Dick Edwards of the Amsterdam News, Edward Hershey of Newsday, and Nat Hentoff, who is a staff writer for the New Yorker, a columnist for the Village Voice, and an associate professor at the Graduate School of Education of New York University.

 The newsmen testified that since September 13, 1971 they had sought without success permission from correctional officials to conduct interviews with Attica prisoners. It was their consensus that interviews of prisoners would assist them in reporting all sides of the Attica situation. Since September 13, Commissioner of Correctional Services Russell G. Oswald and other state officials have made statements to the press and have participated in television interviews. The reporters claim that without access to the inmates' information they cannot give a balanced or complete version of what occurred on September 9-13. If permitted to interview prisoners, they would question them about their grievances, the causes of the uprising, what happened during the takeover, the conditions in D Yard during the period of September 9-13, what happened when the state forces suppressed the rebellion, and the conditions at Attica since that time.

 At the hearing, Mr. Mancusi stated his opinion that to allow interviews at the present time would, in the language of Paragraph 3 of the Guidelines, "adversely affect the integrity, security, and safety of correctional programs and facilities, and inmates." He supported this conclusion by pointing to the climate of hostility between inmates and correctional officers, the disruption of programs and activities for inmates, the need for repairs of the institution's physical plant, the heavy demands which visits by attorneys and relatives placed upon correctional officers who were working twelve-hour shifts, and the need to protect inmates' constitutional rights in the face of the criminal investigation being conducted at the prison by Deputy Attorty General Robert E. Fischer. Mr. Mancusi was opposed to interviews not only of the prisoners who were still at the Attica Correctional Facility but also of others who had been transferred to other state correctional facilities and to hospitals. It was his opinion that it was not prudent to fix a date less than one month away from October 7 for returning to a policy of permitting press interviews.

 It was not apparent to the court why these reasons, except for the concern for inmates' constitutional rights, would mandate the banning of interviews at hospitals and at other correctional facilities to which Attica inmates had been transferred. *fn2" Yet, when Mr. Mancusi was asked if he would oppose such interviews if a man were warned of his constitutional rights beforehand, he said that he would. It finally became apparent that the main reason for forbidding interviews was, as Mr. Mancusi testified, that "certain types of news stories can be inflammatory; can have a devastating effect upon the climate; can provide a difference of opinion."

 It should be pointed out that the court affords little weight in this decision to the argument that Attica Correctional Facility does not have space or personnel to accommodate newsmen, for not only are lawyer and family visits being permitted, but visits by some outside groups have evidently been permitted. *fn3"

 The instant application initiated by the September 28 order is one for limited relief only. Plaintiffs' memorandum in support of their application sets forth the limits of their demand in this way:

Plaintiffs present challenge to the defendants' current refusal to allow media-prisoner interviews is a limited one in that the July 15, 1971 Guidelines are not themselves being attacked here. This is not to say, however, that plaintiffs accept these Guidelines as proper. * * * But this is a matter for another day, since all that plaintiffs challenge at this time is the present specific denial.

 The court is not asked to decide whether an inmate has a constitutional right to be interviewed by representatives of the news media, whether a correspondent has a constitutional right to interview an inmate who seeks or consents to be interviewed or whether the Guidelines infringe anyone's First Amendment rights. The question is whether the application of the Guidelines by correctional officials to forbid interviews of Attica inmates since September 13 is so unreasonable under present circumstances that the prohibition should be held to be an abridgement of any constitutional rights of the newsmen plaintiffs. The plaintiffs contend that the reasons given by Superintendent Mancusi for forbidding interviews are insufficient to support such a ban. They claim that none of the problems expounded by Mr. Mancusi in his testimony support a finding that to allow interviews will "adversely affect the integrity, security and safety of correctional programs and facilities, and inmates."

 Reasonable men may differ about whether press interviews would presently heighten or lessen tension at Attica Correctional Facility. Compare the opinion of Superintendent Mancusi with the general views of Professor Lloyd E. Ohlin, expressed in an affidavit filed in Nolan v. Fitzpatrick, 326 F. Supp. 209, 212 (D. Mass. 1971). *fn4" Reasonable men might also differ about what priorities should be given to visitation, rehabilitation and reconstruction of the prison facility in the aftermath of the riot.

 A disagreement among reasonable men does not, however, necessarily rise to the level of a violation of constitutional rights. Before a federal court can act under the Civil Rights Act, there must be a clear violation of the constitutional rights of the party seeking relief. Although there is no doubt that in recent years the federal courts have subjected the administration of prisons to increased scrutiny, a federal court will not substitute its own judgment about what restrictions are required for the safety and security of the institution for that of the prison administrator unless a violation of constitutional rights is clear. See generally Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971).

 In the instant case, the newsmen plaintiffs disagree with Superintendent Mancusi's determination that to allow press interviews at this time would adversely affect the security of the facilities, staff and inmates of Attica Correctional Facility. But they have failed to make a clear showing that this disagreement presently amounts to a violation of any constitutional rights which they may assert against correctional officials. Considering all of the circumstances of the instant case, the court cannot say at this time that the prohibition on interviews at Attica Correctional Facility is an unreasonable restriction on contacts between prisoners and the press. The court therefore believes that at this time deference should be given to Superintendent Mancusi's judgment regarding press interviews.

 Plaintiffs' application for an order giving journalists immediate access to Attica ...

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