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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

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 

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 determination 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 substantial damage to property that would entail the risk of death or serious bodily injury 

to persons.” Id. The procedures may include “limiting certain privileges, including, 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.

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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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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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 concluding 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. ElHage, 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 interviews or videotaped interviews with an inmate, or place other reasonable conditions 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 involuntary 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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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 considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders 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 regulations’ 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 determination 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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