Gary D. Carpenter v. State of South Dakota

536 F.2d 759, 1976 U.S. App. LEXIS 8742
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 3, 1976
Docket75-1939
StatusPublished
Cited by32 cases

This text of 536 F.2d 759 (Gary D. Carpenter v. State of South Dakota) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary D. Carpenter v. State of South Dakota, 536 F.2d 759, 1976 U.S. App. LEXIS 8742 (8th Cir. 1976).

Opinions

STEPHENSON, Circuit Judge.

Three inmates of the South Dakota Penitentiary appeal from the district court’s dismissal of their petition seeking damages and equitable relief.1 Petitioners challenge the prison censorship board’s ban on the receipt by prisoners of mail containing sexually explicit material.2

[761]*761The district court dismissed the petition as frivolous, without a hearing and without requiring a response from the defendants. The district court found:

The application clearly shows that Plaintiffs were given written notice that certain mail items were being rejected. Petitioners were granted a hearing at which they were present and given an opportunity to be heard. The mail items were rejected on the basis that they constituted a danger to rehabilitation.

Petitioners assert that the district court erred in failing to grant them an evidentiary hearing on whether prison officials were justified in refusing to allow prisoners to receive these publications. We disagree.

Assuming these materials are not obscene, non-prisoners would clearly have a right to receive the publications. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the Supreme Court observed:

It is now well established that the Constitution protects the right to receive information and ideas. “This freedom (of speech and press) . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U.S. 141, 143, [63 S.Ct. 862, 87 L.Ed. 1313] (1943); see Griswold v. Connecticut, 381 U.S. 479, 482, [85 S.Ct. 1678, 14 L.Ed.2d 510] (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308, [85 S.Ct. 1493, 14 L.Ed.2d 398] (1965) (Brennan, J., concurring); cf. Pierce v. Society of Sisters, 268 U.S. 510, [45 S.Ct. 571, 69 L.Ed. 1070] (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510, [68 S.Ct. 665, 92 L.Ed. 840] (1948), is fundamental to our free society.

394 U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 549. It becomes necessary to determine whether petitioners’ status as prisoners mandates a different result under the First Amendment.

In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the Supreme Court stated:

We start with the familiar proposition that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 [68 S.Ct. 1049, 92 L.Ed. 1356] (1948). See also Cruz v. Beto, 405 U.S. 319, 321, [92 S.Ct. 1079, 31 L.Ed.2d 263] (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.

417 U.S. 822, 94 S.Ct. 2804, 41 L.Ed.2d 501.

Consistent with this general rule, it has been held that a prisoner retains the right to read what he wants unless the state can show a countervailing interest warranting censorship. See Burke v. Levi, 391 F.Supp. 186, 190-91 (E.D.Va.1975); Laaman v. Hancock, 351 F.Supp. 1265, 1267-68 (D.N.H.1972); Sostre v. Otis, 330 F.Supp. 941, 945 (S.D.N.Y.1971); Rowland v. Sigler, 327 F.Supp. 821, 824-25 (D.Neb.), aff’d sub nom., Rowland v. Jones, 452 F.2d 1005 (8th Cir. 1971); Seale v. Manson, 326 F.Supp. 1375, 1382 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191, 1193 (N.D.Cal.1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 904 (S.D.N.Y.1970).

In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court held that in order to justify censorship of prisoners’ personal correspondence, two requirements must be met: (1) prison officials must show that “censorship furthers one or more of the substantial governmental interests of security, order, [762]*762and rehabilitation;” and (2) “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.3 A number of cases have expressly held that the Martinez standards should be applied to prison censorship of publications. See Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974); Hopkins v. Collins, 18 Crim.L.R. 2318 (D.Md., December 11, 1975); Aikens v. Lash, 390 F.Supp. 663 (N.D.Ind.), modified on other grounds, 514 F.2d 55 (7th Cir. 1975); McCleary v. Kelly, 376 F.Supp. 1186 (M.D.Pa.1974); Gray v. Creamer, 376 F.Supp. 675 (W.D.Pa.1974).

Assuming that the Martinez standards apply, censorship of the publications involved here is constitutionally permissible only if it furthers the prison’s substantial interests in security, order, or rehabilitation, and no less restrictive means would suffice to protect the prison’s interests. The prison officials have the burden of proving that censorship is warranted.

This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty.

Procunier v. Martinez, supra, 416 U.S. at 414, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.

Although the district court did not require a response from the defendants, we are satisfied that petitioners on the face of their complaint and documents attached thereto demonstrated that further proceedings were not required and that the district court was justified in dismissing their complaint. For example, exhibit I, a summary of the board’s action attached to the complaint, stated that upon petitioner Bagley’s request a hearing was held on April 16, 1975, by the prison board at which Bagley agreed that one of the catalogues, entitled “Marital Aids for Lovers,” sent to him by a California mail order house could be withheld.

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Bluebook (online)
536 F.2d 759, 1976 U.S. App. LEXIS 8742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-d-carpenter-v-state-of-south-dakota-ca8-1976.