Earl Warren: Number 34, William J. Kernan, Administrator of the Estate of Arthur E. Milan, Deceased, et al., Petitioner, versus American Dredging Company. Mr. Freedman.
Abraham E. Freedman: Thank you, sir. Court please, these are two cases claiming death -- claiming damages for death of -- on account of the rising out of a marine disaster on the Schuylkill River on November of 1952, sir. Briefly, two questions are raised in this Court. One, is the warranty of seaworthiness qualified by considerations of negligence. And two, where in the violation of a -- of a regulation -- of a governmental regulation -- is it necessary to show that the injury involved was within the contemplated purpose of the regulation despite the fact that the -- the violation itself was the proximate cause of the injury. Briefly sirs, these are the facts. The respondent here, the American Dredging Company, was engaged to dredge a pier or at a pier of the Atlantic Refining Company in the Schuylkill River in Philadelphia. The Schuylkill River within the territory limits -- within the boundaries of Philadelphia, has lined along its -- its banks, a number -- probably, a half a dozen refineries, at several of which there are piers where ocean going tankers call and load, and discharge petroleum products. Now, on this particular day, sirs, the American Dredging Company was dredging at a point called Point Breeze and -- the -- several miles up beyond the point where this accident happened and the -- in connection with that dredging operation, the respondent here was using a tugboat called the Arthur N. Herron, which was towing barges, flat barges, down the river loaded to a dumping ground and then he would bring them back light to the Point Breeze, where the dredging operation was being done. And then pick up another one. On this particular occasion, the Arthur N. Herron, I should say too, Your Honors, and this is of extraordinary importance in this case that along -- this accident happened opposite -- in the Delaware River, opposite the gulf refining piers or gulf refining plant, I should say. It's -- there are not only piers, but there's a refining company there as well. It's a huge plant extending crops over several blocks. And on the shore side, there were signs saying, "No smoking. No naked lights." And on the water side, on the docks facing the river, there were also space every 50 feet apart, there were signs, "No naked lights. No smoking." Now, in addition to that, on this particular day and of this night, there were seven tankers that were loading or discharging petroleum products at the Gulf Oil spillways. It is -- testimony shows quite clearly that in connection with the loading or discharging operations, petroleum fumes are given off and in the various governmental periodicals, a good bit of which is within the Coast Guard regulations. It is a known fact that these gases tend to permeate the atmosphere and sometimes they can be flashed some distance away and the flash will set the whole area or fire back to the point of origin, even to the ship. Now, on this particular day, the Arthur Herron had picked up somewhere about 8 o'clock or in that area in the evening at a light barge, a -- a scow designed and it was towing it back up the river to the place where the dredging operation was taking place. It is important to note that at that time, the barge add about five feet of freeboard. That means, there was -- there were five feet between -- there was five feet between the surface of the water and the deck of the barge. Coming up the river, this barge had two lanterns, open flame, naked lights, these flamed kerosene lanterns, one on the forepart and the other on the stern of the barge, laying flat on the deck of the barge. When -- it was coming up, I said it had about five feet of freeboard therefore, the lights were approximately five feet above the surface of the water when it was coming up, as it passed the same gulf refining area. It got to this Point Breeze, scene of operations, sometime later which was a couple of miles up the river and then it transferred the -- it let -- let go of the light barge, the light scow and picked up a loaded scow and transferred the two naked lights which had been burning all during that period of time to the loaded scow. Now, the loaded scow had between two and a half and three feet of freeboard, which meant that the lights then came much closer, about two feet closer to the surface of the water. It is conceded hereto, when I say conceded, I mean the test -- there was no dispute on the testimony and the captain of the said boat that was towing the barge admitted at this time that he was aware of the fact that on this -- in this area, the fuse, which were given of from these discharging operations were heavier than there. They had a tendency to light and make a fashion upon the water. And at the lower, they are in the water -- the water -- the concentration -- the inflammable concentration appears.
Speaker: Are we --
Abraham E. Freedman: As this --
Speaker: Are we being asked to review the facts here?
Abraham E. Freedman: No, sir, Your Honor. I point these facts out because they are important in determining whether or not, there is a breach of the warranty of seaworthiness. There was no -- there was no dispute of facts here. I'm not asking Your Honor to reverse any finding of fact. What I've said to Your Honors, one of the facts which I've related to Your Honors are undisputed facts in the record. I think these are basic to the questions. I didn't want to just give Your Honors a -- a proposition, a legal proposition to operate in a vacuum, sirs. As this tugboat towing this barge, this scow on its starboard side, was coming down the river. I should say that the type was flat and it was there for bucking the tide. The wind was about four to five miles per hour. Very, very slight wind coming from the Southeast, so that it was against the tug also, and from the area of the gulf refining up the river in the direction which the tug was coming, as this -- oh and I should say one -- I should tell Your Honors one more fact which has bearing on it and that is that these seven tankers which they moored at these spillways at the gulf, at least some of them, we were unable to get all of the captains, but at least some of them were carrying red lights at the masthead which was in accordance with governmental regulations, a danger signal. I should say also that the -- the lights, the governmental regulations require that two lights be carried on this kind of nondescript vessel, eight feet above the water -- eight feet above the water. That's what the governmental regulation requires. There is a question in the case as to whether or not, they -- we may assume for the -- for the purpose of argument that the purpose of the regulation was to prevent collisions that the lights were designed to prevent collisions although, the general purpose of all of these regulations was for and I quoted, “Safety of life at sea." Now, as this tugboat with its flotilla, where the barge were beside, it was coming down this river as it get -- opposite the gulf refining plant, about a half a mile up to where these vessels were discharging, the captain of the tugboat, Captain Taylor, called up one of the deckhands to stay and watch at the bridge despite the fact that there were vessels just down the river with the red lights showing, and he went down for a cup of coffee. He left this deckhand in charge of the bridge while he went down. And while he was down, and he talked to the engineers down there for a few minutes. While down there, he noticed a ribbon of flame starting up -- on the barge opposite where the naked lights were located and it travelled around the left of the barge and then the whole area was just a mass of flames around the flotilla within a matter of seconds after that. Captain Taylor stood transfixed for about a minute. I think that's his testimony, he didn't do anything. He didn't put the fire fighting apparatus into operation. He just stood there. And then, sprang into action, he ran into the engine room. He had been staying there talking to the engineer. One of the decedents here named, Milan, the gentleman, the -- the member of the crew that he had sent up to the bridge, was the other decedent, his name was Worrell. He was the deckhand. I should tell, Your Honors, also that this barge was of all steel construction except the -- the deckhouse which was wood. As soon as this fire started within a minute after that, about a minute after that, Captain Taylor then jumped into the engine room with another man, another deckhand who was there and then he sealed all the hatches. He closed the doors, closed the vents and everything else and of course, the room became filled with smoke very quickly. He had a telephone connection between the engine room and the wheelhouse were Worrell was located but did not call Worrell to tell him to come down of the engine room or to get out of there where it was all wood construction. McGinley, the cook, was also in his quarters on another part of the vessel. He did not call him. He state the first order that he gave in the engine room was to stop the engines and then his second order was to reverse the engines, and his third order, he after -- he'd been in about three minutes and he looked out on the water and he saw the fire coming -- coming down or practically dying out, he then gave his third order to stop the engines again and then he yelled, “Everybody overboard!” He dashed out of the door to the stern, he was the first man out of the engine room to the stern where he found the cook McGinley with a light boat and that he ordered him over board, he jumped over behind him. When he got to the dock, the other two men on the engine room -- oh, that's one point that I forgot to tell Your Honors about and that is that when he gave the third order to stop the engines so that he could get out and go overboard, he didn't get any response from the engineer, Milan, and he said to himself, he thought then that Milan had been overcome by smoke, so that he reached over himself and he shut the controls off so the engines were stopped and then he went out leaving Milan there, him thinking that Milan was overcome by smoke. As I said, he left everybody else in the engine room, went over the side and so fast that he go that by -- that by the time the other man, the oiler and the other deckhand got to the stern, he was already on the -- on the dock, the light of dock at the gulf where the gulf employees were ready with hoses and so on. He ordered them. He yelled to them to come over and they jumped overboard and swam to the dock. Now, the court below -- we contended and the court below that there was not only unseaworthiness, but there was negligence. There was negligence and that the naked light should not of -- never have been used in that area that the vessel was unseaworthy and that she was not adequate. She was not -- she was in unsafe place. It constituted -- those naked lights constituted an unsafe appliance in that area where you have the petroleum refineries and where vessels were loading and discharging liquid petroleum and particularly, in view of the fact that you have these signs, I don't know if that -- that makes -- that would be necessary, but it only emphasized the -- the danger that was involved. The court below rejected all of the contentions of liability. He said that this vessel was in a sudden emergency. He said that it was not considered to be a danger area and here is where the warranty of seaworthiness comes in. He said that it wasn't considered to be a danger area and therefore, it was not negligent. The word that he used was, "negligent". Therefore, it was not negligent for this vessel to have carried these naked lights in this situation. He did find also that the configuration was caused by the naked lights and he said that was the proximate cause of the disaster. The violation of the regulation was the proximate cause of the disaster. He refused liability for the -- because of the violation of the regulation, because he said the purpose of the regulation was to prevent collisions and not to prevent fires. And therefore, he said that the fact that the -- the lights were carried at the lower level, despite the fact that because they were carried at the lower level, they caused the fire and you couldn't base liability on that. I should have told Your Honors that the testimony shows that the higher up, the light scow, the less danger there would have been of any fire of the -- they're being a dangerous concentration at eight feet. The testimony showed and the court so found that -- had the lights been carried higher, the fire might had been averted. Our position was that they should have carried battery lights in that area and not even taken any chance with -- with these naked lights at all. We also contended there that the vessel was unseaworthy because this particular captain was not adequate to the situation that he was not equal in disposition to other seamen in the same category that while -- anyone would have been frightened that -- anyone would've been scared under the same circumstances, nevertheless, we felt that as captain of the vessel, he owed a duty to those men, to the man up on the bridge that he had left there who was bound to stand duty until relieved and to Milan that he thought was overcome by smoke in the engine room, we say that as a master of the vessel, he owed a greater duty even -- despite the fact that he might had been scared. However the --
Tom C. Clark: The grounds of two claims among seaworthiness vessel, one -- one based on the crew and one based on -- on the lights on the ship?
Abraham E. Freedman: We -- yes, Your Honor, we had those two but we -- we-- have not urged in this petition for certiorari. We have chosen to limit this argument to the question of whether or not, the carrying of those lights constituted an unseaworthy condition under those circumstances and whether or not the violation of the regulation was negligence per se despite the fact that the injury itself was not contemplated within the -- within the purpose of the regulation.
Tom C. Clark: As -- you not rely on the unseaworthiness due to the character of the captain?
Abraham E. Freedman: Well, we -- we in court below did, sir. But in this Court, we felt that we should narrow the issues and therefore, those were the two points that we presented. If Your Honors find any further facts, I -- I certainly wouldn't say that Your Honors were wrong, I personally feel that this was gross negligence that this vessel was unseaworthy also because this captain was not equal in disposition under seamanship in accordance with Your Honors decision on the (Inaudible) case. Those are my contentions. But as I said, I do not want to burden to this Court with argument. I thought that my arguments on the naked lights and on the violation of statute were so strong that I was willing to hang my head on those two points, without intending to -- to indicate in the slightest degree that I have no confidence on those points at all. Now, we respectfully submit Your Honors and I -- I will make this, I know my time is limited. We respectfully submit Your Honors that the warranty of seaworthiness does not contemplate any considerations of negligence whatsoever. The court below, as Your Honors will note from his opinion said, "He was treating the warranty of seaworthiness with a negligence together and they both depended upon whether or not the area was considered to be a dangerous area." Now that doctrine was completely foreign to the warranty of seaworthiness as this Court has announced the -- in the Mahnich case and the Sieracki case and all of these succeeding cases which have come before this Court. In Mahnich, this Court said, "That due diligence has nothing whatsoever to do with the -- with the warranty of seaworthiness." It is an absolute form of -- of duty, of obligation and if in fact, the place of work where the appliance itself is unsafe, then it makes no difference whether the -- whether the shipowner knew or didn't know about it or whether he could have known about it, as for example on the Sieracki case where there was a -- a defective shackle involved which could not have been discovered by any reasonable inspection. This Court held that it was in fact an unsafe appliance and has made no difference whether the shipowner could or could not have ascertained its effectiveness and therefore, it was a breach of the warranty. I might invite Your Honors' attention to the decision by Chief Judge Parker and by Judge Learned Hand in the (Inaudible) which I've cited in my brief in which he points out the distinction between a liability under warranty and a liability under negligence. He says the warranty is a promise that a fact is so, in this situation, is as a promise that the -- that the ship is seaworthy, that in fact, it is safe under the circumstances as distinguished from considerations of due -- due diligence, the reasonable care to make it safe. That is as relevant only in connection with determining the negligence, but it has no bearing whatsoever, in determining the question of the warranty of seaworthiness. Now on the -- on the second questions so far as the violation of the regulation is concerned, this Court treated that subject and six different cases and I believe finally concluded in the -- its -- its decision in the -- and set the rule at rest in the Davis versus Wolfe case, which I've cited to Your Honors and in the Coray versus Southern Transportation Company case. Prior to that time, there were series of four cases, the Kennedy and the (Inaudible) case wherein a -- there was a violation of the statute of a regulation where this Court held that there was no liability because it was incidental. The -- the violation of regulation was not the proximate cause, but it was only the incidental matter. In the two following cases which I've cited in my brief in this Court came the Layton and the Gotschall cases, where just the reverse was true. Finally, the question came up again in this Court in Davis versus Wolfe. And this Court laid down a rule that if in fact, the -- the breach of the regulation was the proximate cause of the injury, then it makes no difference that the injury was not contemplated within the original purpose of the regulation. And -- and there -- as liability float from that fact alone. This Court confirmed that doctrine in the Coray case. We therefore, suggest to Your Honors that upon either ground -- either upon the ground that -- both upon the ground of unseaworthiness, there was a clear breach of the warranty of seaworthiness here and the violation of the regulation as found by the court below since it was found by the court below to be the proximate cause of the accident, then the fact that it may not had been contemplated within the original purpose of the -- of the regulation. For that ground alone too, liability should have been imposed.
Hugo L. Black: May I ask you, before you sit down.
Abraham E. Freedman: Yes, sir.
Hugo L. Black: You refer me to the place in the Court's opinion where it held what you say it held there?
Abraham E. Freedman: Yes, sir. I have it set forth in my brief on page 8, sir. On page 8, if I may read it to you, Your Honor.
Hugo L. Black: 8 of what?
Abraham E. Freedman: Page 8 of my brief sir, my brief on certiorari -- on the -- the blue briefs. That's the one. May I read it, sir?
Hugo L. Black: All right. Which part is it used?
Abraham E. Freedman: The -- the -- the quotation, sir, as -- from the Court's opinion.
Hugo L. Black: Is that the only thing you rely onto that order? If you say they --
Abraham E. Freedman: That's all there is in this opinion regarding unseaworthiness and negligence. This is his whole finding to the extent that applies to negligence as well as unseaworthiness.
Hugo L. Black: But I was talking about the brief to the regulation.
Abraham E. Freedman: Oh, for that, sir --
Hugo L. Black: The brief to the regulation --
Abraham E. Freedman: The Court --
Hugo L. Black: -- approximately called as I found there. Now, where does he say that even though their regulation was violated and it was breached, no liability because whoever the regulations didn't contemplate the thing about injuries.
Abraham E. Freedman: That's exactly what he said, sir. And I'm picking out of those opinion or just a moment.
Hugo L. Black: That's all right. If you go ahead and there's a time to it (Voice Overlap) --
Abraham E. Freedman: Well, I have made --
Hugo L. Black: Page 418 of the record.
Abraham E. Freedman: Thank you, sir.
Hugo L. Black: Page 418.
Abraham E. Freedman: I -- I just like to reserve the minute (Voice Overlap) --
Earl Warren: Yes, you may.
Abraham E. Freedman: -- for rebuttal, sir.
Earl Warren: You may.
Abraham E. Freedman: Thank you, sir.
Earl Warren: Mr. Byrne.
T. E. Byrne, Jr.: Before I start, may I address myself to Mr. Justice Black's last question to Mr. Freedman and point out that while on page 418 of the record, the third paragraph on that page is the one that has voted in Mr. Freedman's' brief that the two preceding paragraphs deal with the -- at the pertinent subject and the paragraph that supported this but one. In other words, the Court is not being able to deal with three subjects in the same paragraph and the same words shows it dealt with, than to deal with him in three succeeding paragraphs. And I think, sir, that when you read the opinion of the Court in the context, you will see that's what the District Judge did.
Hugo L. Black: What?
T. E. Byrne, Jr.: That he explains or rather he does not hold that you may not have unseaworthiness without negligence.
Hugo L. Black: I was talking about the violation to the regulation.
T. E. Byrne, Jr.: The fact, sir, that the --
Hugo L. Black: If that's what you want to discuss, your time is short (Voice Overlap) --
T. E. Byrne, Jr.: I understand that. I would like --
Hugo L. Black: (Voice Overlap)
T. E. Byrne, Jr.: I would like to start, sir, then -- and then say this, the facts which have been argued here at oral argument lead to me to think that the petitioner is asking this Court to review the facts and make its own findings independent of those of the trial court. It had been my understanding that the fact that in admiralty, there was a trial de -- de novo had been laid to rest by this Court's decision in the McAllister versus the United States. I do not therefore intend to argue the facts of the case. I intend to rest my position upon the findings and the opinion of the courts below, and as I see the crux of this case, it -- it becomes one, a question of statutory interpretation and two, question of the interpretation of a regulation. I'll deal with the regulation first. The regulation in question is one promulgated by the Coast Guard and when the owners look at the original, we will see that's headed to regulations for the prevention of collisions that's clear from a title. It requires that lights on certain barges shall be at certain height above the water and ours were not on that night. The position that the court below took and I think it is well founded, well based in a party is that where you have a regulation for the prevention of collision, that you maybe negligent to cause a violation where there is collision, but that is not evidence of negligence, nor is it evidence of unseaworthiness. Now, to get into the question of unseaworthiness which as I see it is the crux of the present case. I think we have to define our terms. The most recent definition that I know off is that by this Court and Mr. Justice Douglas, you wrote the opinion in the Boudoin versus Lykes Brothers case. And you there said that, "Unseaworthiness was not something that was absolutely terms. It was all relevant. Now, it's -- if it is relevant at all, then I think you have to apply the rules of the facts which were before the District Court in this case. We have a situation where -- and the findings of the fact are not that there were a -- mist or vapor all permeating this area. The findings of fact on page 416 of the record is that the cause of the fire was the admission of a highly inflammable vapor lying above an extensive accumulation of some petroleum products spread over the surface of the river. And I think that what District Judge Kirkpatrick was talking about in his opinion was whether you had to hold under the doctrine of unseaworthiness that where a fire occur by reason of the fact that the surface of a navigable river suddenly and quite and most unexpectedly burst into flame, that that was something that a shipowner or tug owner had to anticipate and his failure to anticipate it was either negligence or it rendered in a ship unseaworthy. Now, if the rule on unseaworthiness is absolute that I suggest to the Court that if a ship is going past Cape Canaveral of the coast to Florida and one of our test rockets should come out of the air because it misfires and hits that ship, then at the moment of impact, the place of work that the seaman on that ship where they're working is unsafe. And then, if my opponent's position of what the law should be is correct, then I presuppose that everything else aside, that ship would, at the moment that the rocket struck it, be unseaworthy and therefore, there would be absolute liability of the shipowner to members of the crew working upon it. And I suggest that that's analogous to the situation.
Tom C. Clark: If I ended a claim (Inaudible) leaks of gases out on -- on the river is that against the ship?
T. E. Byrne, Jr.: Your Honor, they were the first people they sued. If you will turn to the brief and opposition of the petition for certiorari, you will find a complaint against Gulf Oil Corporation set out for bottom as an appendix. That suit was filed approximately one month before American Dredging Company was sued. That suit has been stayed to the trial, I presume, by some arrangement between counsel for Gulf Oil Company and -- and counsel for these petitioners while the petitioners here and the plaintiffs, in the -- being the same persons in the Gulf Oil Company suit are represented by the same counsel. I do not represent Gulf Oil Corporation. It's only --
Earl Warren: There was another defendant --
T. E. Byrne, Jr.: (Voice Overlap) --
Earl Warren: Well, there's another plaintiff in this case, a man by the name of Harrington.Wasn't there something --
T. E. Byrne, Jr.: Yes, sir. And I agreed, sir --
Earl Warren: What became of him? He isn't --
T. E. Byrne, Jr.: No, Harrington has a very minor claim. He's represented by another counsel and I agree that Harrington's case would abide the result of this one. It was frankly, Mr. Justice Warren, a question of courtesy and economics. This case would not warrant all of the expense involved in coming to this Court. If this Court should by chance which I hope it shall not, reverse the judgment, Mr. Harrington will come in by my agreement. I want to turn to the fact that this Court is being asked to deal with the limitation liability statute of the United States. I have gone in somewhat to the history of that statute in the brief. I have pointed out that Congress has amended it from time to time that when Congress amended it last in 1935 and 1936, it had before it, such cases as the decisions of the lower courts in the Lusitania. The decision of the Court of Appeals for the Ninth Circuit in the Princess Sophia, it's actually reported as (Inaudible) versus Canadian Pacific but that doesn't matter. And it did not change the law on the point which is here involved that is, that where there is a violation of a statutory regulation where the regulation has been designed to be the particular evil or prevent a particular risk and there is a loss. It did not seek and the laws is not within the purview of the -- that presumably the regulation or statute was intended to prevent but that does not impose liability, did not render the Princess Sophia unseaworthy. It so happened in that case, there were not a sufficient number of life boats or the passengers that were all board. In other words, there were not a -- that was a violation of regulation. The -- the Court of Appeals for the Ninth Circuit held that that was a material. It did not render the ship unseaworthiness, no one escaped that disaster and therefore it had no -- it was not the purpose, which the legislation would design to accomplish, had not -- had any material bearing. In other words, it was not causation, I think, that the thing to determine that I want to -- I'm groping for between the statutory violation and the result which followed. I think that that's all that the courts below in this case had done. And I have referred here -- this Court to Mr. Justice Holmes holding in the Eugene Myers rather an old case. I pointed out that the English War on this same question was the same as ours and so far as I know, the only law where causation alone is a factor is that of the communist countries. The general Western European law all has its -- so far as I've been able to find, all has that same concept that you do not violate a duty where the duty is imposed to accomplish a particular purpose and something else happens. I suppose that -- all I know, there are regulations that prevent the ships carrying dynamite and such other things and if the -- Mr. Justice Warren the -- it's time up?
Earl Warren: No, no -- no, sir. You go right ahead and we --
T. E. Byrne, Jr.: There are regulations that prevent the carrying of dynamite. If a ship carried dynamite and a -- a seaman tripped over a case of it, not because it wasn't labeled dynamite but because it was put in some place. I question very much that there is any nation, any maritime nation certainly not France, England or the United States up to this point which would say that the ship was therefore unseaworthy. It would have definitely been unseaworthy because of improper labeling of this case, if there'd an explosion of the dynamite and that's almost the situation we have here. Now again, getting to the field of international law and I'm trying to go as fast as I can. I want to call the attention of this Court, the fact that the limitation of liability statute of the United States while it's over 100 years old and hasn't been amended in 27 years, there, the United States was one of 32 member-nations which in October of this year, met at Brussels, the draft of a convention, an international convention relating to the limitation of liability of owners of seagoing vessels was released by the State Department on October 15th, 1957 as its document Number 577. This information has come to my possession since my brief was filed. I call the attention of the Court to the fact that of the 32 member-nations attending, more than half of them have already signed the convention and that the announcement of the State Department was the effect and I'm quoting from the press release of October 15th." The decision as to whether the convention will be signed on behalf of the United States will not be made until there has been consultation between the Department of State, Commerce, Justice of Navy and with the admiralty bar and shipping industry." The fact to that matter has come to my attention because the draft of it has already been submitted to a subcommittee of what is known as the American Merchant Marine Institute and I am informed unofficially that it has recommended that the United States sign these Brussels convention. I don't know whether it will or not of course. The United States did not and I believe frankly the Court did not sign on 1922 Brussels convention because in objective to certain of the provisions, the present convention or the draft of it or its actually the convention now has, I believe, met many of the objections which the United States had to the 1922 Brussels convention. Now, I point this out to the Court as solely to point up this fact that should we become a signatory to this Brussels convention and should our law be that a violation of a regulation almost in vacuo in other words, a regulation intended to prevent one arm and another arm occurs, rendering a ship unseaworthy. That is going to have a great effect upon this nation's merchant marine, because we will then be subjecting our industry to a bargain of defending itself or being unable to avail itself of limitation liability in cases where ships of other nations can do so. And it isn't a problem which is as narrow as the facts of whether the widows in this case shall recover from this defendant or not. We realized that it's outside the scope of my argument here, but this people did have an opportunity to obtain workmen's compensation, they rejected it. They have also apparently heard good opportunity to recover from a tortfeasor. And this Court I think would have to set aside Justice Holmes holding in the Eugene Myers where the situation involved this same regulation involving lights upon vessels. It was a violation there and I don't want to quote from memory, but roughly he said that where there's a violation of a regulation, that should not and is enough under American law and he also quoted English law to impose liability upon a violator for the tort of the third person. And I think that's precisely the situation which we have here and that there is no need for a further extension of the law of the United States to the effect that unseaworthiness and the absolute liability which follows it, come -- comes -- shall be the result except in those cases where the intrumentality is intended to guard against the harm. These lights were intended to guard against the harm of collision.
Speaker: What do you -- how do you distinguish the Safety Appliance Act cases?
T. E. Byrne, Jr.: Oh, the Safety Appliance Act cases, sir, first of all, I think that when this Court said that the Safety Appliance Act shall -- Acts shall apply let's say the more than the man who was actually getting in between the cars, they were saying, the -- the class of persons who was intended to be protected by the Safety Appliance Act is the railroad workers. Now, in -- in this case extending the protection of the clash, this clash already has it and we don't -- we're not quarreling with that. We're saying that you're changing the scope of the regulation here. In other words, you -- the deal with the Wolfe case and the -- some of the other cases cited by our opponent under the Safety Appliance Act were held against the railroad companies who try to defend solely on the ground that the heresy -- defect and errors of man intended to be protected. He was hurt because of the defect. But this Court said, "The fact that there is a recital in the congressional history of that act that it's to protect -- they're only man on coupling is not the test. It's to protect a man of this class, railroad workers from injury. Though, I -- I say in this case, this is not a statute intended primarily to protect anybody from injuries -- intended to prevent collisions between vessels. Secondly, I say this, sir, that this -- the Safety Appliance Act is specifically intended to prevent injuries to workmen. Now, this is a -- it is present regulation. It is not of that same class. It is a statute which is intended to prevent collisions of vessels on water. I draw your attention to the fact, Mr. -- Mr. Justice Harlan that this regulation -- had this collision rather, occurred in daylight, there would've been no violation even though we had the lights on the same place because we could smoke and cook and have a bonfire on the deck of this thing. There's no -- absolutely no regulation to prevent that as the court below points out.
Earl Warren: You don't raise any question of survival here?
T. E. Byrne, Jr.: No, sir. The -- if these parties are entitled to bringing this action by reason of their provisions of the Jones Act, so far as survival is concerned, yes, sir.
Speaker: (Inaudible) Jones Act.
T. E. Byrne, Jr.: Sir, the Jones Act, their rights are given them by the Jones Act. In other words, the Jones Act perpetuates the right which the general admiralty law does not give to maintain a -- an action for wrongful death. These people being our employees upon navigable words, that right flows to them from the Jones Act, yes, sir. It is however, a -- an action under the limitation of liability statute. It was so instituted and so tried throughout. I do want to point out sir, though, that the fact findings and also the finding of causation which to me is very important in this case is generally considered, I thought to be an issue for the fact finder and not one of law or a review by an appellate court. And the District Judge as I read his opinion has held in our favor on that point.
William J. Brennan, Jr.: Well, may I ask on --
T. E. Byrne, Jr.: Of course.
William J. Brennan, Jr.: On the Jones Act, the -- the basis of liability here is not violation of Jones Act, is it?
T. E. Byrne, Jr.: Sir the Jones Act --
William J. Brennan, Jr.: I mean, bringing in the FELA.
T. E. Byrne, Jr.: I've not -- I don't understand your question.
William J. Brennan, Jr.: This -- this is not a Jones Act case.
T. E. Byrne, Jr.: The right to maintain this action, sir, there's -- another words, the survival under the administrator of a dead man is given by the Jones Act. In other words, the right -- the right of action --
William J. Brennan, Jr.: The basis of liability is either unseaworthiness or --
T. E. Byrne, Jr.: Negligence.
William J. Brennan, Jr.: -- negligence.
T. E. Byrne, Jr.: Yes, sir.
William J. Brennan, Jr.: Isn't that right?
T. E. Byrne, Jr.: That's right.
Earl Warren: Thank you. And if you have something more Mr. --
Abraham E. Freedman: Thank you, sir. If I may address myself to the last question --
Earl Warren: Yes, you may.
Abraham E. Freedman: The Jones Act didn't more than merely create a right of action for death, sir. If I may quote it and I think this is verbatim, it said, "That in such action, all statutes relating to railway employees shall apply.” In other words, all of these regulations, all of these statutes which apply to railway employees are equally applicable to merchant seaman by its present corporation into the maritime law by the Jones Act. So that Your Honors question before Mr. Justice Harlan fits right in here. If it's a statutory violation involving the FELA, a liability can be predicated on that in this kind of an action because the Jones Act incorporated into the maritime law, all of the statutes relating to railway employees so that the remedy today is as this Court said at Panama Railroad versus Johnson, the maritime law as modified by the Jones Act, so that the seaman today have a right to recover for unseaworthiness and, or for negligence. And in that negligence action, all of these railway employees are -- its actions are applicable. Now, in this situation, precisely the same interpretation which this Court gave to the FELA cases and the Coray and in the Davis case where it said that if the -- if the violation is the proximate cause, then liability flows even though the injury itself is not within the intended purpose of the Act. And on that point if I may read to Your Honors just what Justice Kirkpatrick said there's only one line, two lines. My -- my friend just forgot -- he read part of it. He said that the --
William J. Brennan, Jr.: What page is that?
Abraham E. Freedman: At page 416, sir. The end of the second paragraph where my friend read that the -- the cause of the fire was the ignition of highly inflammable vapor lying above and extends of accumulation of some petroleum product spread over the surface of the river and that's where he stopped. But the Court goes on to say which was touched off by an open flame kerosene lantern carried on a deck of the scow at the rear point corner. So that -- and he goes on to say that the proximate cause of this accident was this naked light and even holds that there was probity if there were liabilities so that these made liability, there would be probity. So that actually in this case, we apply all of the same constructions that are applicable to the railway employees.
William J. Brennan, Jr.: Well, what about the Moran case?
Abraham E. Freedman: I -- as I read the Moran case, there's nothing in there, sirs, which is in anyway in conflict with what we have said here.
William J. Brennan, Jr.: Well, the Moran case dealt with its very regulation on lights, didn't it? You said that there was no liability because --
Abraham E. Freedman: Well, as -- as I read the Moran case, there was a question of a collision and there were other factors involved. The precise situation involved here was not involved there. First of all, it was not a personal injury case. And Your Honors, I've treated FELA, a personal injury cases particularly over the FELA with some different constructions. In other words, where personal injuries are involved, a different construction is warranted that where a mere collision is involved. That is the -- the FELA statute are entitled to a -- to a more liberal construction. That's what this Court said in the Davis and in the Coray cases and even in the line and the other four cases where -- and two situations the -- this Court held the contrary because the accident was simply -- that is a breach of the violation was only incidental and not the proximate cause.
Felix Frankfurter: Is this an FELA case?
Abraham E. Freedman: Sir?
Felix Frankfurter: Is this and FELA case?
Abraham E. Freedman: This is a maritime case, but which has all of the advantages over an FELA case, without exception, sir.
Felix Frankfurter: May it please ask a question if there's a FELA case?
Abraham E. Freedman: Well, at the -- this Court said, if I may use --
Felix Frankfurter: The argument seemed to give some unseaworthiness? A part of general maritime law, not FELA but all the advantages of a FELA. What is it?
Abraham E. Freedman: It's a -- it's a maritime case. It's -- there -- it never changes Your Honor, despite the fact that all of the statutes are -- if I may take a moment to -- to define that, when this -- when the Constitution of this country was adopted, this Court said in (Inaudible) case that it embodied within the Constitution the maritime law as it then existed and Congress, not even Congress would change that law. That is, it could not take anything out inherently which belonged in it and they couldn't change the characteristic features of the law without a constitutional amendment. That's what came up right in the Panama Railroad versus Johnson case. Now, when the -- when the Jones Act was -- was enacted, it held that the -- all of the statutes relating to railway employees were incorporated into the general remedy. It didn't -- it didn't change at any. It supplemented it. It didn't -- it didn't provide an alternative, but it supplemented what -- what the old maritime law already provided for and this Court held in Panama Railroad --
Felix Frankfurter: It can't be that --
Abraham E. Freedman: Sir.
Felix Frankfurter: It cannot be what the maritime law already provided for. If FELA is an exceptional case and then you enlarge the scope of what maritime law was constitutionally speaking, which is what you've just said.
Abraham E. Freedman: Well, this Court held that the -- that the incorporation of the FELA into the maritime law did not change the characteristic features. Had that been so, this Court would've held the Jones Act unconstitutional. That was the very question involved in the Panama Railroad.
Felix Frankfurter: If we didn't know what the FELA, how enlarged that was until the other day, namely Rogers.
Abraham E. Freedman: Well, it was intended that whatever -- whatever benefit --
Felix Frankfurter: Whatever it is, you'd get the advantage of it, the maritime law.
Abraham E. Freedman: Well, if this Court said that whatever benefits the railway employees got, it was intended. Congress intended that seamen should have it, because the statute reads literally just that way. That all statutes relating to railway employees shall not be applicable in these actions brought by this merchant seaman. Now --
Felix Frankfurter: I understand that, but I wish you wouldn't call a general maritime law.
Abraham E. Freedman: Well, but the remedy is still --
Felix Frankfurter: All right, yes. That's it.
Abraham E. Freedman: The remedy is still the general -- there is no (Voice Overlap) --
Felix Frankfurter: (Voice Overlap) --
Abraham E. Freedman: Sir?
Felix Frankfurter: My question (Inaudible)
Abraham E. Freedman: Thank you, sir. Regarding the Gulf Oil suit, sir, we started an action against the Gulf Oil. Gulf Oil says there are a lot of refineries on this river. There is one across the way, Esso Refining. There's another one just a little bit further down the river, the Atlantic Refining where this dredging operation was taking place and there are others on the river. Now, they say that it could -- that gas could've come from anywhere. We say that the party to sue is the party that took us into that area. He had the obligation. He had the safety of these people right on his hand. That is the shipowner. And it was his responsibility as this Court has said many, many times in these cases. It is the primary responsibility to look after the safety of this people that is of the shipowner. If he has any right of action over against Gulf or anybody else, he could've pleaded them, there's a real reason why he didn't have plead them. The same underwriter represents Gulf and this -- and this -- this company, Travelers Insurance Company -- that's why they weren't pleaded in this situation. Now, I -- I trust that I've answered Your Honor, Justice Burton's question. I only want to make one more statement, sirs and I will conclude. I have listened to my friend here with great attention when he talks about the limitation of liability statutes. I -- I frankly cannot understand why he introduced it. I may say since I'm member of the subcommittee that he referred to before, the maritime law association, there has been no action taken. As a matter of fact, this -- this committee is hostile to it, but they have referred it for further study. But I still don't know why it's in this case. It has absolutely nothing to do with warranty. It only has to do where the question of whether or not in limiting liability, the value will be greater or less of the vessel, that is fund for distribution in cases involving limitation of liabilities, sir.


Warren E. Burger: We'll hear arguments in 73-754, Procunier against Hillery and 73-918, Pell against Procunier. Mr. Murphy, you may proceed whenever you are ready.
John T. Murphy: Mr. Chief Justice, may it please the Court. This case is here on cross-appeals from a decision of a three-judge District Court for the Northern District of California. And I'm representing Raymond Procunier, who is the Director of the California Department of Corrections and several of his subordinate officials who have been sued in this particular action. Now, the facts are -- are essentially these. On August 21, 1971, Mr. Procunier based upon his knowledge of the California prison system and based on the sad experience of events concluded that he could no longer permit press and other media interviews with specific individual inmates, and he issued a -- a regulation to this effect. Now, a civil right suit was bought -- was brought and the -- the plaintiffs in this civil rights suits -- suit were news media representatives and were also prisoners. On November 1, 1972, the District Court single judge acting issued a temporary restraining order which enjoined the operation of Mr. Procunier's regulation. As a result of this injunction, interim procedures were adopted by the Department of Corrections and those interim receipt -- procedures remain in effect at this time. On August 16, 1973, the three-judge District Court issued its order in this particular case, the order which is before the Court. The District Court found that the regulation unnecessarily restricted the First Amendment rights of the inmate plaintiffs in the action. However, the District Court also concluded that the complaint brought by the media plaintiffs was properly dismissed on the grounds set forth in the motion of the defendants to dismiss the complaint. Now, the point of Mr. Procunier's appeal is this. The California Department of Corrections has a -- a real and demonstrated need for the regulation which has now been struck. The absence of this particular regulation then and now is causing a hazard as far as the care and custody of inmates and the prison situation generally in California. And furthermore, the decision of the Court as a president tends to undercut the ability of Mr. Procunier to operate his prison system as he thinks it should operated most effectively.
William O. Douglas: Is it the entire regulation on page 2 of your brief?
John T. Murphy: Yes, Your Honor. That is California Department of Corrections Administrative Manual Section 415.071.
William O. Douglas: Just that once sentence --?
John T. Murphy: Yes, Your Honor. Now, this regulation was generated by an emergency situation, namely the killing of three guards and the killing of three inmates and the wounding of others on August 21, 1971. But aside from having been generated by this particular incident, it involves something more -- more deep, it involves an underlying and persistent problem recognized earlier and still recognized today in the operation of the penal system. So, we are not necessarily treating this as being an emergency regulation, but an important regulation which the Department of Corrections is urging that it could institute or reinstitute today.
William J. Brennan, Jr.: Mr. Murphy, how is it now been suspended
John T. Murphy: Since November 1, 1972, Your Honor, by reason of the temporary restraining order.
William J. Brennan, Jr.: And there have been interviews over that period -- since that time?
John T. Murphy: Yes, Your Honor, pursuant to interim procedures.
William J. Brennan, Jr.: And have -- have there been any difficulties within the prisoners?
John T. Murphy: This record would not indicate any specific situations since that period of time, since November 1st?
William J. Brennan, Jr.: Does the record tell us what -- is there any -- anything in the record about the experience since that time?
John T. Murphy: Yes.I could go outside the record. I --
William J. Brennan, Jr.: There is nothing in the record?
John T. Murphy: No, there is nothing in the record, which would indicate what the experience has been of the Department since November 1, 1972.
Warren E. Burger: What was the date of the three-judge Court to --
John T. Murphy: August 21st -- excuse me, August 16, 1973. The case had been submitted in February of 1973 and was not decided until August of 1973. Now, the problem as seen by Mr. Procunier and the other defendants in -- in this particular action is what to do about the inmate who has, in the past, or the inmate who will in the future, use the press as a vehicle for promoting his own personal ambitions or leadership in disruptive forces within the prison. This is what it has been characterized in -- in various cases, not just this case, but in another cases, as the big wheel syndrome or the celebrity syndrome. Now, courts that have looked at this judgment, this administrative judgment, this administrative consideration, have recognized it as a good faith advancement made by prison officials, yet there has been a tendency to put this aside, cast it aside very lightly. However, it is a very important consideration and it's a very real consideration, it's is a very troublesome consideration and that's why I think this case is here and why Mr. Procunier has brought this -- this particular case. Now, the impact of the press on -- on individuals has not gone unnoted by this Court before. In Estes versus Texas, this Court had the occasion to consider in-depth what the impact of one form of the media would be on witnesses, on jurors, on judges, and attorneys. Not just in the court group -- room setting, but also in their behavior patterns and if you could take that analysis from -- from the Estes case and apply it to a prisoner setting, you would come up with -- with this result. When the press attention focuses on an individual inmate, this attracts interest in the prison community from staff and from inmate alike. As the publicity increases, the status of the inmate within the prison increases accordingly. It becomes more important. With the increase in publicity comes increases in tensions. Now, if the views, if what the inmate is trying to communicate arouses the hostility of others within the prison setting, you have considerable problems. If that particular inmate is preaching a doctrine of noncooperation, a doctrine of disruption, then those consequences are going to become even more serious.
Thurgood Marshall: But does this regulation also apply to an inmate who wants to preach Jesus Christ Superstar?
John T. Murphy: I think it would be clear, Your Honor, that if an inmate were to preach within a prison and he were to preach --
Thurgood Marshall: -- preach into the press?
John T. Murphy: Oh, preach into the press.
Thurgood Marshall: Well, suppose he wants to preach in the words of a wonderful man, would that be all right? But he'd be barred from doing it, wouldn't he?
John T. Murphy: He certainly would, Your Honor.
Thurgood Marshall: It is not the harm and the whole thing, everything is barred.
John T. Murphy: Your Honor, we would not advocate a one-sided regulation which would allow those inmates who have something favorable to say to the -- to the press about the institution, to speak to the press and yet at the same time --
Thurgood Marshall: So, you just stop it --
John T. Murphy: -- or bar -- bar other inmates who --
Thurgood Marshall: So, you just stop it all?
John T. Murphy: -- may have something unfavorable.
Thurgood Marshall: So, you just stop it all?
John T. Murphy: That's is right, Your Honor -- with alternatives -- or whether the inmate is not denied access to the press as a general proposition. What is the concern here is the press interview, the face-to-face interview. There is other avenues available and are used and have been used in the past and are being used now for the inmate to communicate to the press. He can communicate through the mail. He can communicate through third persons. Now the record here is very clear and is very substantial.
Thurgood Marshall: What third persons does he communicate with the press?
John T. Murphy: What type of --
Thurgood Marshall: Third person.
John T. Murphy: What third persons. Your Honor, he would have the opportunity to talk to members of his family or other people who would be on his visitor's list.
Thurgood Marshall: Or his ministers.
John T. Murphy: Yes, Your Honor. They are on his visitor's list.
Thurgood Marshall: Good, but not the press?
John T. Murphy: No, he has no right to demand --
Thurgood Marshall: What makes the press bad people?
John T. Murphy: The press are not bad people, Your Honor. The record --
Thurgood Marshall: Well, what would make the interviewing press may have been?
John T. Murphy: Because, Your Honor, the problem that has caused on the inmate himself. This is the situation where the inmate becomes a focus of attention within the prison setting.
Thurgood Marshall: And aren't you trying to rehabilitate it?
John T. Murphy: Yes, Your Honor.
Thurgood Marshall: Can you rehabilitate person without paying attention to it?
John T. Murphy: No, Your Honor.
Thurgood Marshall: And the more attention you pay -- doesn't that help him in rehabilitation?
John T. Murphy: Not necessarily, Your Honor.
Potter Stewart: (Voice Overlap)
John T. Murphy: It would depend upon the type of attention that was --
Potter Stewart: Well, it depends upon you and more attention you pay. Whether it's the press paying attention to him or whether the prison authorities or whether it's his minister, his doctor, or whether some -- (Voice Overlap) influence.
John T. Murphy: Yes, Your Honor.
Thurgood Marshall: But the only bad influence is the press.
John T. Murphy: No, Your Honor, that's --
Thurgood Marshall: (Voice Overlap)
John T. Murphy: The record here is -- is very clear -- very clear that a -- affirmative and aggressive effort is made by the California Department of Corrections to provide the press with access to the prisons. In their access to the prisons, they have the opportunity to confront and to meet with inmates. This is the random process in which many, many excellent press stories have been developed this way. Both from the point of view of the administration of the prisons and also from the point of the view of the prisoners themselves, it's not an attempt to cut off all access of the inmate to the outside world through the -- through the press. The problem is with the press interview. Now, if there were a problem with the family interview or if there was a problem with a clergymen interview, then remedial action would have to be taken, now inmates are allowed to see members of their family because it has been determined that this has a remedial effect in the rehabilitation of the inmate. However, the same individuals who have made this decision that the family has access to the inmate do not find the same rehabilitative effects to the innate by the face-to-face press interview.
Thurgood Marshall: And that person is who? Who makes that decision? If one is rehabilitative and the other is not and (Voice Overlap) when you do, will you also give me his qualification as a psychiatrist, a psychologist or what are his qualification to make such a determination?
John T. Murphy: The law of California best seen control and the management and the care of prisoners in the hands of my client, Mr. Procunier and he is the one that is ultimately responsible for making the decisions. His qualifications have been set out in the -- in the record, in the testimony which he gave here in Washington D.C. and the Washington Post case which is going to follow this case, where he was a witness and he -- he set forth there what his qualifications were almost 30 years of experience in the correctional field beginning with a custodial officer who will also at one time had been administrators in the State of Utah in the correctional system in the State of Utah.
Speaker: His experience in rehabilitation is what?
John T. Murphy: His experience in rehabilitation is through very qualified staff -- technical staff which includes psychiatrists, psychologists and correctional experts which he relies upon in making his decision. He makes his decisions in three steps in effect, you have the correctional problem which is concerned with security and rehabilitation, you have the administrative problem in which he has to think ahead, he must anticipate what the future is going to be as far as his institutions go and he has to take into consideration the legal problems as well. Because in making his decision without some information is what the legal ramifications of those decisions are, he would not be able to make the right decision. Now, his testimony in the Washington post case I think is a very illustrative of what the situation was. As he indicates and this testimony was made a part of the record here, as he indicates in his testimony, that this decision was made with great reluctant, considerable amount of reluctance after much agonizing but he was confronted with a problem, a problem that he, under the Law of California, had to make a decision on and that problem was the effect that these interviews were having on inmates within the institutions. All right, but that's a correctional part of it. He may have his -- his views on --on correctional problems, but he also has a problem of running and administering a prison system of over 20,000 inmates, and he has consider legal problems as well because he cannot and he will not attempt to be selective in deciding who is going to get an interview or who isn't going to get an interview. What institutions are going to get interviews, and what institutions are not going to get interviews. We could just imagine, we could just speculate without any -- any great difficulty, what would happen in the event that a -- a procedure has been propose by the plaintiffs in this case were to be adopted and unfettered discretion was left with the superintendents and the wardens. And one inmate gets an interview and another inmate doesn't get an interview, an inmate is transferred from a minimum security institution into a maximum security institution and he doesn't get his interview there would be all kinds of litigation. And litigation from the correctional point of view presents its own problems, and administrative problem because litigation whether it's a merit or doesn't have merit involves time and effort and energy on the -- on the part of the correctional people and this is something that he has to plan ahead. Now the concept --
Potter Stewart: Mr. Murphy, these are -- I don't want to shorten your submission to us on this practical and sociological problems, some of which we encourage you talk about with our questions but we have here a constitutional case involving -- involving the First Amendment of the United States Constitution made applicable to the State of California through the Fourteenth Amendment of the Constitution. Administered in the very first point in your brief that is what right under First and Fourteenth Amendment if any do prisoners in a State Prison Institution have to demand a personal interview with some report for some paper, is this certainly isn't the -- the right of a free press, the prisoners aren't running a newspaper and free speech and such, I did know, gave anybody an unconditional right to a personal interview with a reporter from a paper. I hope you'll get to those constitutional questions.
John T. Murphy: Yes, Your Honor, I'll get to that point right now, specifically the answer to your question, the inmate has no first amendment right to demand that a press interview be set up with a consenting news man as a First Amendment right. Now, the First Amendment or freedom of -- of expression, when I put it that way, does to -- to some extent permeate the walls of the prison, I think it's -- it's clear that the inmate has access to the Court, and the -- but this access to the courts does not give him a right to come here and argue his case in a court as matter of constitutional right. He has in conjunction with his access to the Court, he has the right to receive a -- a visit from a member of his family. I mean excuse me -- to receive a -- a visit from his attorney to see that his rights are -- are taken care of.
Warren E. Burger: Right on that point to pursue what Mr. Justice Stewart prove to you which I think is important to all of us, his right to an attorney and do you categorized that as constitutional right?
John T. Murphy: Insofar as the attorney is necessary in order to vindicate his rights --
Warren E. Burger: Now then --
John T. Murphy: -- in the -- in the court of law.
Warren E. Burger: The right to visit with his family and his friends under -- under regulated hours and that sort of thing, you treat that as a constitutional right or is that a policy problem by the administrators as part of his treatment rehabilitation whatever you want to call it.
John T. Murphy: No, we would not treat it as our -- our position is, it is not a constitutional right, I could imagine a set of circumstances, however, if you were to lock an inmate away and deprive him for an extended period of time of any visits from somebody from the outside that that may rise to a constitutional right on a cruel and unusual punishment. I could also see that if you took an individual inmate and denied him access to his family, but you'll let all other inmates visit with their family that under those circumstances that there may be an equal protection argument that could be urged, but to say that as a matter of United States Constitutional law mean, has a right to -- to visit with the member of his family, I think is incorrect.
William J. Brennan, Jr.: How about a visit with his attorney?
John T. Murphy: I think he has a right to visit with his attorney, well in conjunction with his access to the Court.
William J. Brennan, Jr.: Constitutional then.
Potter Stewart: Well, that would be probably the Sixth and Fourteenth Amendment, right?
John T. Murphy: It could be. It could be. I don't think it's part of this -- this particular case, but I could see a set of circumstance.
William J. Brennan, Jr.: No, no. There is no Sixth Amendment claim -- claim made in this case, no.
John T. Murphy: Right, but let me continue on this two on -- on this First Amendment freedom of expression question Your Honor, that he has a right to petition the government for redress as a part of the First Amendment. We don't argue with that, but again, it's limited, it's curtailed to circumscribe, you can't go to the legislature and lobby for his -- for his own bill. All right. Now other rights that may be considered as part of the freedom of expression are seriously curtailed by the fact of the incarceration, his right to assembly, if it exists at all, is seriously curtailed by the fact of his incarceration. Also, his right to practice his religion, the way he wants to practice his religion, he may have freedom of thought, but he may not be able to, well, a famous California case. He may not be able to smoke peyote as part of the exercise of his religion. Restrictions could be placed on him there. And I think he has also curtailed right to engage in speech. What Justice Marshall indicated about preaching Jesus Christ Superstar to the press, well he certainly could not preach his religion in one of our major cell blocks with 250 inmates, nor could he preach his religion in the middle of the big yard at San Quentin Prison. Now, was there a seriously concern, a circumscribe right because of the delicate situation of the relationship between the State of California and its inmates is a particularly intimate relationship. This was pointed out by this Court in -- in the Price case. It's an intimate type of relationship. It's not the same relationship as between the state and the citizen and free society. The management and the care of prisons and inmates isn't eerie in which the State has a particularly strong interest. And there is also been a traditional judicial reluctant, which I certainly urge here, to decide matters which have been determined based on the first hand information that's available to the state authorities. Where the state authorities are exercising their expertise in special field and they have reached a decision and have settled upon a choice after considerable amount of deliberation on the subject. Now --
Potter Stewart: Mr. Murphy you're arguing this case both -- both the petition and the cross-petitions?
John T. Murphy: Yes, Your Honor.
Potter Stewart: So both of these petitions and responding. So I expect you must also deal with the asserted right of the petitioning newspaper people in this case.
John T. Murphy: Yes, Your Honor. If I may get back to some of the questions that were asked earlier and I think I can respond to those questions again, in terms of the interest of the -- of the media. Now this case was -- was tried and argued, as a matter of fact a complaint alleged and asserted in the arguments of counsel that the press did have a special access to the sources of information namely the inmates. And one of the arguments that's been advanced which deserves somewhat more discussion, we have talked about it in our brief, but it's been -- it's advanced at -- at length is that, when family members are allowed in, when clergymen are allowed in to talk to individual inmates why is not the press allowed in. When a family member comes in, is to talk to a family member. A father comes in to talk to his son. He doesn't come in to talk to all the prisoners in the institution. When a lawyer comes in, he comes in to talk to his client. He doesn't come in to talk to everybody that happens to be in the institution. Same would be for clergymen, it's a very limited right of access not to the general public but to certain segments of the general public. What's being demanded here by the media is special access. Now they argue in their briefs that they want no more than what is afforded the general public. They get what is afforded to general public. California has maintained a -- a progressive approach of an open prison institution in which thousands of people are allowed to tour the facilities, to engage in various programs with inmates.
Potter Stewart: America as general public, in fact if John Smith showed up, and said “I just want to conduct a tour to the prison” would they let him do it?
John T. Murphy: If he does not, the a prior criminal --
Potter Stewart: They said who are you and then he said, I'm John Smith, I'm interested in the guided tour through the prison.
John T. Murphy: If he does not have a criminal record, the chances are -- are very good.
William H. Rehnquist: Would he be allowed to say, I'd like to speak to inmate X and talk to him for a while?
John T. Murphy: No he would not. If he were to participate in an Alcoholics Anonymous program, he could go in. If he were to participate in the black cultural studies program, he could go in. Any other programs, the records shows here --
Potter Stewart: In my hypothetical, gentleman John Smith wasn't there to participate in anything, he was just a citizen and he was understood in going through the prison, could he do it in California?
John T. Murphy: Yes, Your Honor, I think the record shows that here as far as San Quentin Prison is concerned anyway within a certain period of time during the year, they have regularly conducted tours as you would have tours of the White House, or you would have the tours of this particular building and general public gets in on those.
Thurgood Marshall: You understand your answer to my Brother Stewart's question. If Joe Doaks walks out to San Quentin out of nowhere this afternoon, he says, I want to tour and he wouldn't get any tour.
John T. Murphy: He would not be able to get a private personally-conducted guided tour.
Thurgood Marshall: Will he get any kind of a tour? The answer is no, and you know it's no. You know, nobody walks in the street and defend the entry and everybody stops and takes him around.
John T. Murphy: He would have to Your Honor and maybe I didn't make the point clear, he would have to qualify for one of the public tours, regularly scheduled tours. The institution but I thought I made it clear that the prisons are closed off to the public. They're not open to the public to the extent accepted the extent that the administrators allow them to be open and it is part of the program of rehabilitation to let -- to let members of the general public it's -- to come into the institutions. It's also part of the program of the --of the prisons to allow newsmen to come in on special assignments to check out matters. Now, the record here shows that some examples but there's other -- many other examples that could be -- could be suggested as in or in fact could be shown at a -- a newsman involved with a special topic for example. He is concerned about the topic of rape. He will make a request, the institution will make convicted rapist available to him, he will interview them, get their background and in fact there was television show to this effect. A newsman will go in, a newsman will go in, he's interested in the senior citizens at the prison to make a study as to how the senior citizens, the older inmates, are taking to the new breed of a -- of inmate that's surviving.
Byron R. White: Is the issue here whether -- whether press interviews may be forbidden entirely, is that -- is that it? Your reglation --
John T. Murphy: The issue --
Byron R. White: -- that's forbidden entirely doesn't it? And that's what you're defending.
John T. Murphy: They're not forbidden entirely.
Byron R. White: That's what I says on the face of the regulation
John T. Murphy: The regulation says press and media interviews with specific individual inmates.
Byron R. White: All right.They are entirely forbidden with specific inmates.
John T. Murphy: Individual inmates.
Byron R. White: And that's you're defending
John T. Murphy: Yes, Your Honor.
Byron R. White: And that's what the District Court held unconstitutional?
John T. Murphy: As being unnecessarily restrictive of the First Amendment rights.
Byron R. White: It didn't hold -- it didn't hold, the District Court didn't hold that you could not regulate.
John T. Murphy: That's right, Your Honor, the District Court said that --
Byron R. White: And you're here saying that you have the right to forbid them entirely.
John T. Murphy: Individual face-to-face interviews with -- in the actual practice under the procedure, individual interviews could occur, but only on a random basis.
Warren E. Burger: Well, when you say specific, you mean under this regulation, this regulation forbids having the news media say, I want to talk, I want an interview for next Wednesday or sometime with Seran Seran or some other specific prisoner, but are you saying that under this regulation, they can see prisoners at random not selecting them on their own part?
John T. Murphy: Yes, Your Honor. Yes, Your Honor, and that is the -- is the way it has -- has been operating.
Warren E. Burger: Is there any -- I see nothing in the regulation, but in practice is there any limitation placed that they may interview the prisoner, but they may not identify him and quote him by name?
John T. Murphy: No, Your Honor. Nor is there any restriction on the topic that they can talk to the prisoner about.
Warren E. Burger: And when you say that they're permitted to do it at random, who does the random picking?
John T. Murphy: It would depend upon the circumstances, Your Honor, the record shows here that there was some press interest in those that had been released from death row. And consequently some of those inmates have fit into that category with their consent were made available to the press so that the press could engage them in in-depth type of interviews on -- on that particular subject. The difficulty is this, and this getting -- is getting back to this -- this big wheel syndrome. The -- and get it -- it's also getting back to the case of -- of Estes versus Texas because the tendency of the press is to focus in on the notorious trial. The same situation develops as far as an institution. The tendency will be the focus in on the notorious inmate and it raises all kinds of practical problems as to what is going to be the role of that inmate with relation to members of the staff, with other inmates in his own rehabilitative program. Okay, that's one thing. We have the problem that if we allow specific individual inmates to interview members of the -- of the press of their choice with the consent of the press, the only way that the inmate is going to attract the -- the attention of the press is to stage some kind of incident to make him newsworthy, to get himself involved in some kind of newsworthy event. He'll also have the situation that incidence could be staged at that time that the press is on the scene. We've all experienced this situation. The mere appearance of the press can have a disruptive effect. We have even had situations where demands are made for national TV in the form of extortion to get to accomplish an end for the -- that the inmate is attempting to -- to reach. It's looked on as -- as an administrative problem. Now, California --
Thurgood Marshall: The administrative problem could be regulated, couldn't it?
John T. Murphy: Certainly, Your Honor and this is a regulation.
Thurgood Marshall: The regulation, I don't know -- a regulation that says no, is not a kind of regulation I'm talking about.
John T. Murphy: Well, it's -- it depend on where you start, Your Honor.
Thurgood Marshall: I mean one of the ways if you have trouble with family visiting, one way is just to keep all the families out, but instead of that, she regulate it, they come at a certain time. Well, why can't you say the press can come at a time that we decide is not disruptive, when, that you shall hold your things someplace where there's no other prisoner within a block.
John T. Murphy: This was considered, Your Honor.
Thurgood Marshall: And you mean it's impossible to do it?
John T. Murphy: It was considered and it was done in California from 1957 until 1961. There were no serious regulations on the press during that period of time. We had a discretionary procedure up until August of -- August of 1961.
Thurgood Marshall: And you can't go back?
John T. Murphy: Excuse me, 1971, the procedure in California was to leave it up to the discretion of the warden or the superintendent, he would make the arrangements for the interview and the interview was carried out. It was abandoned and --
Thurgood Marshall: But you say there is no way that you can set up regulations that will grant what this Court here from the United States District Court, to allow that order to stand with the regulation, was that order invited and used rather than to try to work it out, you want us to not get out, is that right? Is that right?
John T. Murphy: This -- I see where my clients -- I will answer the questions as briefly as -- as I can. This is not a total ban on interviews. It is a -- an attempt to come up with the regulation to meet a problem. And in California, the problem is particularly serious. Inmates are engaged in gang warfare. There are alliances of groups within -- within the prison. They are seeking notorieties or rhetoric and other means. It has been decided by the prison administrators that it is in the best interest not only of the -- of the institution, but of the inmate himself that they're not be this particular type of interview.
Thurgood Marshall: (Inaudible)
John T. Murphy: That is correct, Your Honor.
Warren E. Burger: One more question, is there any restriction here except that the media cannot select their own prisons to be interviewed under this regulation, is that or is that not the only restriction?
John T. Murphy: That is the extent of the -- of the restriction.
Warren E. Burger: They can come in, they can interview, they can -- they can take their notes, they can write their articles and they can identify the person interviewed, but they are not permitted to pick out the particular prisoners that they want to interview, is that --
John T. Murphy: That's right, Your Honor, there -- in institutions and of course there's -- there's some local rules as far as using TV cameras and -- and such, in other words, you can't photograph a -- an inmate unless you have his consent to -- you know there's mechanical problems which I really don't think are worth even getting into a discussion on because they're so -- so practical as far as -- as far as the institutions would go.
Warren E. Burger: Now, we have used up a great deal time necessarily, we will extend your time five minutes. We will enlarge yours five minutes, so that you'll have the same amount of time.
John T. Murphy: Thank you, Your Honor.
Warren E. Burger: Mr. Bass?
Stanley A. Bass: Mr. Chief Justice, and may it please the Court, at the outset I would like to point out two factors that make this case very different from what might be termed, the run-of-the-mill prison case. In the first place, this does not involve just prisoner's rights but involves an amalgam of the prisoner's rights, the right of the press and the public's right to know. We're talking about a subject of paramount public concern the question of what goes on in the nation's prisons and therefore the questions -- general questions is to what the first amended rights prisoners may have to talk about the arts to discuss matters of social concern or things that do not have to do with the grievances pertaining to prison conditions are not involved here. The second feature which is a rather extraordinary development is the fact that we do not seek to override administrative discretion in this case. The director of the Department of Corrections, Mr. Procunier has candidly admitted that he would prefer more flexible regulation and that the only reason that he has his regulation is not based upon penalogical considerations, but legal advice. And the courts are clearly qualified and a knockdown by any rule of deference to administrative discretion to defer to the opinions of counsel. As a matter of fact, decisions such as Price versus Johnston which involve the power of a District Court to order a prisoner brought before it to argue a case is discretionary and (Voice Overlap)
William J. Brennan, Jr.: And Mr. Bass I -- I gather certainly, we can't intervene unless to some constitutional right (Inaudible)
Stanley A. Bass: That's correct, well --
William J. Brennan, Jr.: It's not the matter whom you're speaking for, that's -- that's really got to me is trusting your right.
Stanley A. Bass: Yes, well, I was just -- I was going to get to that as soon as we get these two points out of the way, that is the question of the amalgam theory and the question of not overruling administrative discretion
Warren E. Burger: But each one of these rights as Justice Stewart previously and Justice Brennan had now opines must be linked to some constitutional guarantee must it not?
Stanley A. Bass: That's correct.
Warren E. Burger: That it is the right the right of the inmate to speak and to presumably associate and the right of the news representative to come in.
Stanley A. Bass: The --
Warren E. Burger: Each one of those must be linked to a specific constitutional guarantee, must it not?
Stanley A. Bass: Yes, Mr. Chief Justice the -- the rights that we seek to enforce come from a number of decisions of -- of this Court. The decision of this Court protecting for example the right of access to the Court which is part of the umbrella right of petition for redress of grievances, also the prisoner's right to communicate. Surely, the prisoners do not lose their First Amendment rights when they are incarcerated for example just two years ago in Cruz versus Veto, the Court pointed out that persons in prison are not bereft of their First Amendment rights to practice religion and in the footnote the Court indicated reasonable opportunities to practice religion should be made available.
Potter Stewart: I'm interest Mr. Bass in the -- let's accept your hypothesis that prisoners don't lose, let's go far if you want to go to any of their First Amendment rights just my hypothesis, what right does a person outside of prisoner have to access to a newspaper?
Stanley A. Bass: Well, presumably a person on the outside would have the right to meet with a newsman at his office or perhaps a newsman would come to the --
Potter Stewart: But why, why would he? If I went down to the Washington Post, an average John Smith, say I want to come in here, I have something to tell the reporter and they would say, well, we're awfully sorry, even -- even if we're not on strike we're still sorry, we're not interested in what you have to say, you've been here before and we're not interested in you. What constitutional right does he have to go in there and talk to a reporter?
Stanley A. Bass: We're -- we're not suggesting that were the parties other than willing they would be right to coerce the press for example.
Potter Stewart: Well that's -- the press has willingness, you're unwillingness doesn't have to do with a citizen's right then you get over to the press' right, that's something quite different, but you're -- you're here representing Mr. Hillery as a prisoner.
Stanley A. Bass: Right. The inmate has a right of communication and this right of communication and the right of association permit him to correspond or to communicate with the press in order to discuss the matters that deal with grievances.
Potter Stewart: Well other citizens don't have that right, do they, constitutional right, they can write letters to the newspapers, the newspaper have an absolute right to throw them in the waste basket.
Stanley A. Bass: That's true. The press has right to get the news as part of amalgam theory that supports the inmate's right to communicate on that subjects of -- of grievances.
Potter Stewart: It seems to me you're suggesting that an inmate has a right superior to an ordinary?
Stanley A. Bass: I was suggesting at the -- that the inmate has the same right as a citizen.
Byron R. White: What -- what regulation which entered which is a state interference with communication was at issue here.
Stanley A. Bass: That's correct.
Byron R. White: It's not isn't it the ability to the regulation.
Stanley A. Bass: The regulation interferes with communication. It does so by absolutely precluding.
Byron R. White: And I suppose the regulation like that are a law perhaps that prevented an ordinary citizens from going to the Washington Post might -- be might be up here on that too.
Stanley A. Bass: Well, we -- we suggest that the underlying right is there whether or not the State can show some justification to qualify that right would depend upon whatever is asserted or the record that's developed, but in this case the -- showing that the State has made has been completely insufficient. The State refers to the big wheel syndrome but it should be obvious to everyone that the problems mentioned by the State, that is extensive interviews of notorious inmates can be dealt with -- with a much narrower regulation that we have here. And -- and the point that establishes that is that Director Procunier himself recognizes that and it was only because his lawyer told him he has to treat all inmates equality at least as to this point that he cannot have a regulation that decides on a case-by-case basis or even within guidelines.
Thurgood Marshall: -- implications, as I understand the State and I want to get this from you if it's agreeable, he can write to the newspaper.
Stanley A. Bass: Yes.
Thurgood Marshall: But he could send any material he wants to the newspaper. He can send anything he wants to the television studio, is that right?
Stanley A. Bass: Yes.
Thurgood Marshall: Can they write him? And --
Stanley A. Bass: Yes.
Thurgood Marshall: -- ask him for it?
Stanley A. Bass: Presumably, they can.
Thurgood Marshall: So, the only issue here is the television, face-to-face, isn't it? Is there anything other than that?
Stanley A. Bass: A face-to-face interview.
Thurgood Marshall: Is there anything other than that is?
Stanley A. Bass: I wouldn't characterize the -- the question as one of television, it would be -- it would be right of the reporter as well as the inmate to have the face-to-face meeting.
Thurgood Marshall: And other than face-to-face, there's nothing else here?
Stanley A. Bass: No conduct involved --
Thurgood Marshall: In this case?
Stanley A. Bass: -- other than the discussion.
Thurgood Marshall: In this case, now where do you get that right to have the face-to-face interview to try to get what Justice Stewart was asking about? Where does the inmate get that right to have a face-to-face interview in prison?
Stanley A. Bass: The -- well, If I understand Your Honor the question, it's first, where does the inmate get the right and then where does he get the right in prison.
Thurgood Marshall: No, he's in prison.
Stanley A. Bass: He -- He cannot go out. We start with the -- with the basic proposition that an inmate is not entitled to go out on -- on visits. Of course if the State wants to give him referral and that's discretionary. So he's necessarily precluded by the State's action and keeping him in the prison, these forms of communication are limited, that is to say the only way he can communicate with an outsider. Meaningfully speaking, it's for the outsider to come in. And so in order for the press to have a meaningful discussion about the grievances with the inmate, the representative of the press must come in and talk with the inmate. Now, I -- I take the State to argue that a face-to-face meeting is completely unnecessary because adequate alternative methods are available, but this ignores both the record and the other cases involving this issue and the record in this case. Specifically on page 159 of the appendix is the affidavit of Bobby Bly, who is one of the inmates in this case who specifically mentioned the need to “see and talk with representatives from the media and express my views on different topics freely, as well as fully describe the conditions I am being subjected to as a black prisoner”. Now this --
William H. Rehnquist: Mr. Bass this raises a question that may -- may be more procedural and substantive, but did the District Court grant anybody's motion for summary judgment here?
Stanley A. Bass: Apparently there was an oral motion for summary judgment. Originally the plaintiffs had moved before the single judge for a preliminary injunction. That was granted. The State came in and said the three-judge Court is required and vacated it, but the motion for preliminary injunction was left hanging. Then when a three-judge Court convened, they heard the motion for preliminary injunction and apparently without any objection from the parties consolidated the hearing on the merits with the motion for preliminary injunction and called out a motion for (Voice Overlap).
William H. Rehnquist: But what's the posture of an affidavit like this? If -- if you have a ruling in your favor, you -- you can assume that the Court shows to believe it if the ruling is against you, you have to assume that the Court shows not to believe it.
Stanley A. Bass: The Court does say that based upon the affidavits and exhibits and so forth in the file, it makes its ruling. So it did consider the affidavit of Bly as well as the letters written by journalist and the testimony of Mr. (Inaudible) And in the testimony of Mr. Procunier in the Washington Post case was also put in the record by the defendants. So everything was considered by the District Court.
William H. Rehnquist: But can -- can you tell from -- from the findings of the District Court whether they chose to believe the particular affidavit you are relying?
Stanley A. Bass: Well, you cannot tell as to that specific point, on the other hand, since there was nothing on the record to rebut that, it really doesn't seem to be a consequential point that is -- since it's in the record and the District Court ruled in favor of the inmate plaintiffs and the State didn't rebut it, it's -- the judgment is supportable by what's in the record.
Warren E. Burger: Would you think there is a constitutional right when they have visitors day for the general public, not for relatives, just visitors who are going through to see the prison, there's a constitutional right either on those visitors or in the prisoners to stop and talk to each one of them to conduct visits.
Stanley A. Bass: We need not reach that, a problem in this case because the individual just walking though who was just a person does not play the same role as the press does in terms of reporting the grievances and since the --
Warren E. Burger: Well, he might -- he might.
Stanley A. Bass: Well he -- if he purported to play a role of informing the public more weight would be given there to the need of communication, but in this case --
Warren E. Burger: It might a lawyer who is just generally interested in the subject of penology. Do you think his right is any less of that of a newspaper or other media?
Stanley A. Bass: Mr. Schwartz of course will argue the -- the freedom of the press. I would simply point out that since the right of the press is part of this amalgam that the press is recognized specifically in the First Amendment and it would have a right of reporting on those conditions. I -- I would then get to the State's interest that are asserted in defense of the regulation and would point out that insofar a security is advanced as a justification, the warden answers to the interrogatories make rather plain that if the prisoner is dangerous or if the visiting room is overcrowded or if the media abused its access, then of course subsequent interviews could be denied, those are relative parts of what might -- regulation of interviews. Interestingly, Mr. (Inaudible) testified on page 260 of the record that the visit in the visiting room would not create greater security problems than -- than a tour with a newsman would go at random on let's say, the maximum security facilities. With respect to the big wheel theory which is I sense is really the problem that state --
Warren E. Burger: I think we will take that theory first thing in the morning.