Jackson v. Godwin Brief for Appellant

    IN FORMA PAUPERIS

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 25299

HERMAN JACKSON, JR.,
Appellant,

v.
JAMES B. GODWIN, Assistant Superintendent, 
Florida State Prison, Raiford, Florida,

Appellee.

Appeal from the United States District Court for 
the Middle District of Florida

BRIEF FOR APPELLANT

EARL M. JOHNSON625 West Union Street 
Jacksonville, Florida

JACK GREENBERG 
MICHAEL MELTSNER 

10 Columbus Circle New York, New York
Attorneys for Appellant



r.

TABLE OF CONTENTS

Page
Statement ..............................................  1

Testimony of James B. Godwin .......................  5
Testimony of Eric 0. Simpson.......................  9
Testimony of Mrs. Olga L. B r a d h a m .................  10
Testimony of Herman Jackson ........................ 11

Specification of Error ................................  11
ARGUMENT..............................................  12

Denial of Negro Publications to Negro 
Prisoners While White Prisoners Are Permitted to Receive White Publications
Violates the Fourteenth Amendment....................  12

Conclusion..............................................  22

TABLE OF CAGES
Adderly v. Wainwright, No. 67-298 Civ. J. (M.D. Fla.) . . 1
Board of Managers v. George, 377 F.2d 288 (8th Cir.

1967) cert. den. 36 U.S.L. Week 3144................  20
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) ........  21
Burton v. Wilmington Parking Authority, 365 U.S. 714

(1961)..............................................  18
Cochran v. State of Kansas, 316 U.S. 255 (1942) ........  19
Cooper v. Pate, 373 U.S. 546 (196 5 ) ...................  19
Fulwood v. Clemmer, 111 U.S. App. D.C. 184, 295 F.2d

171 (1961)................   18
Hawkins v. North Carolina Dental Society, 355 F.2d

718 (4th Cir. 1966) ............................  17, 13
Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959)........  18
Lamont v. Postmaster General, 331 U.S. 301 (1965) . . . .  21

i



Page
Louisiana v. United States, 380 U.S. 145 (1965)........  18
Ludley v. Board of Supervisors, 150 F. Supp. 900 (E.D. La. 1957) affirmed 252 F.2d 372 (5th Cir.

1958) cert. den. 358 U.S. 8 1 9 ......................  18
McLaughlin v. Florida, 379 U.S. 184 (1964).............  18
Meredith v. Fair, 293 F.2d 696 (5th Cir. 1962)..........  18
NAACP v. Button, 371 U.S. 415 (1963)....................  21
Overseas Media Corp. v. McNamara, 36 U.S.L. Week 2217 . . 21
Pierce v. La Vallee, 293 F.2c1 233 (2nd Cir. 1961) . . . .  19
Rivers v. Royster, 360 F.2d 593 (4th Cir. 1966) .........  17
Roth v. United States, 354 U.S. 476 (1957).............. 20
Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961) .........  19
Shelley v. Kraemer, 334 U.S. 1 (1948)..................  18
Singleton v. Board of Commissioners, 356 F.2d

771 (5th Cir. 1966) ................................  20
Smith v. Morrilton, 365 F.2d 770 (8th Cir. 1966)........ ' 18
United States v. Logue, 344 F.2d 290 (5th Cir. 1965). . . 19
United States v. Mississippi, 339 F.2d 679 (5th

Cir. 1964)..........................................  13
United States v. Wilbur Ward, 345 F.2d 857

(5th Cir. 1965)   13
Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966)probable jurisdiction noted 13 L.ed. 2d 988 (1967) . . 20
Yick Wo v. Hopkins, 113 U.S. 356 (1886)................  14

STATUTES AND REGULATIONS INVOLVED
Fla. Stat. Ann. §945.21 (1) (j)..........................  6
Rule 190A-3.403 (2).....................................  6
Rule 190A-3.403 (3).....................................  3
Rule 190A-3.406 (4).....................................  3

ii

/



IN FORMA PAUPERIS

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 25299

HERMAN JACKSON, JR.,
Appellant,

v.
JAMES B. GODWIN, Assistant Superintendent, 
Florida State Prison, Raiford, Florida,

Appellee.

Appeal from the United States District Court for 
the Middle District of Florida

BRIEF FOR AiPPELLANT

Statement
Appellant Herman Jackson, a 27 year old Negro, has been a

prisoner for the past seven years at the Florida State Prison1/ 2/under sentence of death for the crime of rape (Tr. 64, 75). He

1/ Jackson's sentence has been stayed pending disposition of a 
class action brought on behalf of all Florida prisoners under 
sentence of death challenging various aspects of administration 
of the death penalty by the State, Adderly v. Wainwright,
No. 67-298, Civ. J. (M.D. Fla.).

2/ Citations to the typed transcript of trial are shown as (Tr.). 
Citations to (R.) is employed for the remainder of the record.



is lodged in the prison's maximum security area, the East Unit, 
which has a population of about 1,100 or about one-third of the 
prison's total population of 3,200. Approximately one-half of 
the prisoners in the East Unit are Negro (Tr. 8, 9). During 
1966, Jackson subscribed out of his own funds to the Courier 
(R. 22), a weekly newspaper which presents news and features of 
special interest to the Negro reader. The paper is referred to 
interchangeably in the record as the Pittsburgh and Florida Courier, 
published in Miami as the Florida edition of the Pittsburgh Courier. 
(R. 22; Tr. 41). Apparently Jackson subscribed with the knowledge 
of prison authorities for a permit is required (Tr. 31).

When he received only a few issues of the Courier during the
first six weeks of the subscripttion (R. 22), Jackson wrote a
letter to Mr. James E. Godwin, superintendent of the East Unit,
requesting that his subscription be continued and also that he be
permitted "to order two black magazines, namely Ebony and Sepia,
of which neither is subversive, but rather clean, educational and
informative literature" (R. 7). Jackson claimed that white inmates
were permitted to receive publications directed to white readers.
Without intending "to be disrespectful. . . in any manner", he
urged that it violated his rights to deny him publications oriented
to the Negro reader (R. 7):

" . . .  since I'm a black man I enjoy reading 
black literature, just as much as a white 
man enjoy (sic) reading white literature, and 
. . . inasmuch as white inmates are permitted
to receive white magazines and newspapers I 
think I am entitled to black magazines and 
newspapers so long as they're not of a subver­
sive nature."

- 2



Godwin wrote Jackson denying both these requests. As 
Jackson had been a resident of West Palm Beach, Florida prior to 
his incarceration, he could not subscribe to the Courier because 
"only hometown newspapers are permitted to any inmate on death 
row" (R. 6). No explanation was given as to why Jackson would 
not be permitted to subscribe to Ebony and Sepia other than the3/
statement that white inmates are not permitted "to have Esquire."

On September 20, 1966, Jackson filed a handwritten petition 
invoking the jurisdiction of the district court under 42 U.S.C§ 
1983 to enjoin the assistant superintendent from unconstitution­
ally refusing to permit him and other Negro inmates from ordering 
"black newspapers, magazines and books" (R. 5-12). In his peti­
tion Jackson alleged that (R. 6-10):

(1) he had requested permission to receive the Pittsburgh 
Courier, Ebony and Sepia;

(2) his reauest had been denied;
(3) Mr. Godwin's statement in his letter that inmates could

3/ Godwin's reply states;
TO: Jackson, Herman, £000494, CM

R-2-N-17
Jackson:
No one is depriving you of your civil rights or any other 
eights accorded men on death row. Only hometown newspapers 
are permitted to any inmate in death row and that includes 
white inmates. This applies to colored magazines such as 
Ebony, which are not permitted nor do we permit white inmates 
on death row to have Escruire.
You may not have the Pittsburgh Courier for in no place in 
your jacket is there any indication your hometown is Pittsburgh 
or have ever even been there (R. 6).

3



only receive a newspaper from their hometown was incorrect as he 
had received "white" newspapers which did not come from his home 
town, to wit, the Washington Post for three months, the Tampa 
Tribune-Times for 9 months, the Gainsville Sun for 4h months and 
the St. Petersburgh Times for three months;

(4) inmates were allowed to receive the Amsterdam News until 
the prison officials discovered that it was a Negro newspaper;

(5) inmates receive only "white" newspapers;
(6) the only six magazines available to prisoners —  National 

Geographic, Field and Stream. Outdoor Life, Readers Digest, Red 
Book and Cosmopolitan —  were oriented to the white reader; and

(7) as a result of being compelled to read "white" literature, 
he was uninformed about the Negro community (R. 9-10).

On December 7, 1966 the district court granted Jackson leave 
to proceed in forma pauperis and issued an order to show cause 
"why the injunction should not stand" (R. 13).

Respondent moved to dismiss the petition February 6, 1967 on 
the grounds that it failed to state a cause of action; that the 
magazines and periodicals sought induce lack of security because 
they incite and stimulate in an unhealthy manner;and. that control of 
prisoners' reading material is within the discretion of the custo­
dian of the prison (R. 14-16). It was also alleged Jackson had 
failed to exhaust his state remedies (R. 15-16).

In a pleading answering the motion to dismiss, Jackson 
alleged that as he complained of a violation of his constitutional 
rights, he was under no duty to exhaust the state's judicial

4



remedies before resorting to the federal courts; and that in any 
event to seek relief in the Florida courts would be "entirely 
futile", as the Florida Supreme Court had on a prior occasion 
refused to consider his petition for the relief demanded in the 
present action (R. 13-19). He denied that the Courier, Ebony and 
Sepia would in any way induce, incite or stimulate in an unhealthy 
manner. On the contrary, they were educational and informative 
publications (R. 21).

On March 15, 1967, the district court denied the motion to 
dismiss and appointed Earl Johnson, Esquire, of Jacksonville, 
Florida as counsel for Jackson (R. 17).

In a response to the order to show cause respondent alleged 
once more that the "magazines and periodicals which the petitioner 
seeks are of a known character to induce lack of security within 
the penal system because of their nature to incite and stimulate 
in an unhealthy manner", (R. 30, 31). None of the other factual 
allegations in the petitioner's complaint were denied.

Trial was held August 9, 1967 and the following evidence was 
adduced.
Testimony of James B. Godwin

Mr. Godwin testified that the Superintendent of the Institu­
tion and the Director of the Division of Correction had authorized 
him to establish a prescribed list of reading material for inmates

4/(Tr. 9). Godwin explained that a committee —  consisting of the

4/ Under section 944.11 of Florida Statutes Annotated, the Board 
of Commissioners of State Institutions is authorized to adopt 
such regulations as it may deem proper to govern the admission 
of educational and other reading material within the state

5



Chief Classification Officer, the Chief Correction Officer, and 
the Chaplain —  had the responsibility of selecting magazines for 
the inmates in the East Unit (Tr. 10). This committee did not 
operate under any particular guidelines other than to exclude 
magazines which, in their view, were either "sexy" or would raise 
security or disciplinary problems among the inmates (Tr. 12-13). 
They sought magazines which would be "uplifting", "entertaining 
and educational." In selecting these magazines no attempt was 
made to include any intended for or of interest to Negro inmates 
(Tr. 11, 12, 20), even though one-half of the unit's population 
is Negro (Tr. 9):

Q. Do you happen to recall whether any 
magazine or periodical or newspaper 
was permitted which, you might say, 
was oriented toward the Negro reader?

A. Really, I don't know as they were ever 
considered on that basis; we didn't 
even consider that. We just assumed 
that —  .

At first, Mr. Godwin testified that he did not recall if Ebony or 
Sepia had been considered for inclusion or. the list (Tr. 13-14) ,

4/ (Con't) institutions for the use of prisoners. Under section 
945.21 (1)(j) the Board is authorized to adopt and proru ilgate 
regulations relating to mail to and from inmates.
The Board adopted Rule 190A-3.403 (2) which provides for the censorship of inmates’ mail; Rule 190A-3.403 (3) which g...ves the 
administrative head of the prison the right to refuse to send 
or receive any prisoners' mail, when, in his opinion, such mail 
would be detrimental to good order or discipline; and 
190A-3.406(4) which grants the Director of the Division of 
Corrections authority to set up a specific list of reading 
material which may be admitted in the correctional institu­
tions of the State of Florida. These regulations are found in 
the record at pages 37, 41.

6



but then testified that he had been told the Committee had 
considered them although he had not been present at the time 
(Tr. 15).

According to Godwin, Jackson's request for the Couri.er was 
denied because inmates are only permitted to receive newspapers 
from their home town (Tr. 27, 57, 14). Jackson would be permitted 
to receive the Pittsburgh Courier only if he were from Pittsburgh 
and the Florida Courier only if he were from Miami (Tr. 41, 42;
R. Despite the assertion that Jackson could not receive the
Couri r because of the heme town rule, Godwin expressed a reserva­
tion bout the Florida edition. He had never read the Pittsburgh 
edition (Tr. 14). He stated that three front page pictures 
depicting rioters in the June 24, 1967 issue (Resp. Exh. 5) would 
have a detrimental effect on prison discipline (Tr. 42-43). He 
conceded, however, —  and the court took judicial notice —  that 
"all of the daily newspapers" carried similar pictures and stories 
of riots (Tr. 43, 97). The record also shows that the home town 
rule is not strictly enforced with respect to white publications; 
three white Florida papers are available at the prison canteen; 
and Jackson received the Washington Post and other white papers 
for short periods (Tr. 16, 69, 70, 77).

According to Godwin, Jackson was not permitted to subscribe 
to Ebony and Sepia because they were not on the prescribed list 
which included only U.S. News and World Report, Reader's Digest, 
Saturday Evening Post, Sports Illustrated, Picket Cross T,T..rd 
Puzzles, National Geographic, and Outdoor Life (R. 39).

7



Restrictions on the number and character of the magazines were 
necessary, in his opinion, because the prison staff was not large 
enough to screen every magazine (Tr. 18). Such screening was 
required because some might contain articles which might incite 
(Tr. 23) and because "there have been reports of jails in Florida" 
(emphasis supplied) receiving publications impregnated with LSD 
(Tr. 23, 29).

Godwin testified that Ebony was objectionable, although not 
generally a "sexy or spicy" publication (Tr. 19), because it 
occasionally contained articles which would lead to racial diffi­
culty in the prison (Tr. 19). He could net, however, recall any 
specific picture or article which he though was detrimental 
(Tr. 19-20). When confronted with the March 1967 issue of Ebony 
(Resp. Exh. 3), Godwin found objectionable an editorial entitled 
"Needed —  More Human Communication" (p. 109) and an accompanying 
picture "showing Negroes apparently rioting" (Tr. 45). The 
editorial bemoans the lack of communication between the races, 
and between men of the same race, and expresses the hope that 
through true communication man will be able to work for the 
betterment of all.

When confronted with the Fpril 1967 issue of Sepia (Fosp.
Exh. 4) Godwin stated that this issue would be detrimental to 
prison discipline because it contained "spicy" pictures. He 
referred specifically to an advertisement on page 31 which contains 
a small line drawing of a man and woman embracing (Tr. 39 -40).
He admitted that the Saturday Evening Port —  one of the

8



publications on the prescribed list —  contained pictures of 
women, but said that they were of a different nature from those 
contained in Sepia (Tr. 52, 53). Pictures of women, he stated, 
"would not be detrimental. . . to security; but it just is some­
thing that we feel doesn't have its place in a prison where men 
are confined by themselves" (Tr. 52).

On redirect examination Godwin was shown the August 7, 1967 
issue cf Newsweek (Pet. Exh. B) and the August 7, 1967 issue of 
U.S. N-ws and World Report (Pet. Exh. C). Newsweek had been on 
the approved list of six publications, and was still considered 
an ac!' . ptable publication, and U.S. News and World Report was 
presently on the list (Tr. 92). He was referred to an article on 
page 18 of Newsweek, entitled "American Tragedy, 1967 - Detroit", 
and to accompanying pictures which shewed “a picture of the Detroit 
riots, showing quite a bit of chaos in the streets, and destruc­
tion" (Tr. 93). He was also referred to an article on H. Rap 
Brown in the August 7, 1967 issue of U.S. hews and World Report.
He stated that, although these were "approved" publications, the 
articles were the type which he preferred that prisoners did not see 
(Tr. 95).
Testimony of Eric 0. Simpson

Mr. Simpson is publisher of the Florida Star a newspaper with 
a circulation of between ten and seventeen thousand directed to 
the Negro reader (Tr. 80). He stated that Ebony, Sepia, and. the 
Pittsburgh Courier were oriented to the Negro reader, and described 
these publications as educational and informative. He was not

9



aware of anything printed in either likely to induce riot or incite 
disorder. On the contrary, his opinion was that Ebony would help 
to create a very good state of mind for Negroes because "it shows 
some of the better things that the Negroes can be proud of —  some 
of their activities, other than that you would see in, particularly, 
the white press" (Tr. 82-83).
Testimony of Mrs. Olga L. Bradham

Mrs. Bradham, a librarian for more than thirty years in 
school, university, and public libraries, and a holder of a 
Master's Degree in Library Science, testified that Ebony and the 
Pitt, burgh Courier were available to the public in the Jacksonville, 
Florida Public Library (Tr. 34-85). Sepia, which she found unob­
jectionable, was not available solely because of "budgetary 
reasons" (Tr. 35). It was her opinion based on her experience 
as a librarian that the Pittsburgh Courier and Ebony were among 
the best Negro publications in the country (Tr. 85-86). She 
described Ebony as being comparable in terms of quality to Life 
magazine except that Ebony reported the accomplishments of Negroes, 
and items which were of special interest to Negroes. She stated 
that such articles were not available in white oriented magazines 
(Tr. 86-87).
Testimony of Mrs. Gwendolyns Chandler

Mrs. Chandler, a librarian for three years with the 
Jacksonville Public Library corroborated Mrs. Bradham's opinion 
of the unobjectionable nature of the Negro publications. She 
stated that Ebony was one of the best magazines available and 
found nothing in it which would contribute to social disorder

10



(Tr. 83-89).
Testimony of Herman Jackson

Appellant testified in his own behalf that he would like to 
read Ebony, Sepia and the Pittsburgh Courier because these pub­
lications contained articles which cannot be found in the 
literature which is now permitted to the prison population —  one 
half of which is Negro. He had pleaded with prison officials to 
permit him this literature but all his requests had been denied 
(Tr. 66-67). He criticized the West Palm Beach newspaper which 
he was permitted to receive because it never carried any news 
about Negroes except when arrested or when there was a riot 
(Tr. 68). Jackson admitted that he had not read his home town 
papers recently because he had been able to obtain copies of 
out-of-town newspapers —  the Atlanta Constitution and Journal, 
Tampa Times-Tribune, Washington Post, and the Gainesville Sun for 
short periods of time (Tr. 69-70). When he filed his petition in 
the present case, the receipt of these papers was terminated 
(Tr. 71).

In an August 5, 1967 opinion, the district court denied 
relief holding "petitioner has failed in his burden to shov; that 
the practices complained of are manifestly discriminatory in 
violation of 42 U.S.C. §1983” (R. 45). The court granted leave
to appeal in forma pauperis on September 20, 1967 (R. 51).

Specification of Error
The court below erred in failing to hold that denia >. of 

publications written for a Negro audience to Negro prisoners while
11



white prisoners are free to receive white publications deprives 
appellant of due process of law and equal protection of the laws 
as guaranteed by the Fourteenth Amendment to the Constitution of 
the United States.

ARGUMENT

Denial of Negro Publications to 
Negro Prisoners While White Prisoners 
Are Permitted to Receive White 
Publications Violates the Fourteenth 
Amendment.

Although one-half of the approximately 1100 prisoners in 
appellant's unit are Negro (Tr. 8, 9) no attempt has been made to 
assure them access to some newspaper or magazine intended for a 
Negro audience. Assistant superintendent Godwin testified that 
race was not considered in determining publication policy; 
inquiries were not made of Negro prisoners. (Tr. 11, 12, 20)
As a consequence, Negro prisoners may obtain only periodicals 
written for a white audience except if a Negro prisoner happens 
to come from one of the relatively few communities which have 
Negro newspapers. Even the latter possibility appears unlikely 
given Godwin's objection to every Negro publication presented to 
him at trial; appellant's uncontroverted allegation that the 
Amsterdam News was denied to inmates after prison authorities 
learned it was a Negro publication (R. 8); and the fact certain 
white - but not Negrc-papers are generally available to inmates.

According to prison authorities, however, the only reason 
why appellant is unable to subscribe to the Pittsburgh or Florida

12



Courier, its Miami published Florida edition, is that his home town
is West Palm Beach, Florida, not Pittsburgh or Miami. (See Resp. 
Exh. 1; Tr. 27, 41, 42, 57) At the outset we note that the 
policy permits appellant to obtain the Courier if he were 
from Miami which is only 50 miles from West Palm Beach, Florida. 
Secondly, Godwin raised no serious administrative justification 
for refusing to permit appellant to receive a newspaper not 
published in his home town.

Q. Generally, you try to restrict the inmates 
no ordering newspapers from somewhere in this general 
vicinity. Is that correct?

A. Yes, we feel that their interest would be more 
apt to be in their home town - something like of that 
nature. So we restricted that; there has to be a point 
to cutoff somewhere, and we felt that this was the 
most fair way to decide (Tr. 18).

No reason was offered why a reasonable alternative to the home town 
restriction would not be to permit Negro prisoners to select one 
Negro paper of their choice, or even one Florida Negro paper of 
their choice, instead of a home town white paper. Thirdly, although 
Godwin objected to one article in the Courier because it reported 
recent riots, (Tr. 42-43) the district court took judicial notice 
that any newspaper would contain material similar to the article 
which was found objectionable. (Tr. 97) Finally, the record con­
tains numerous instances in which the rule was not strictly applied 
enabling prisoners to obtain white newspapers even if not from their

13



home town (Tr. 16, 69, 70, 77,); (R- 6-10) cf. Yiĉ c Wo v̂ .
Hopkins, 118 U.S. 356 (1886).

The two Negro magazines which Jackson sought, Ebony and Sepia, 
are distinguished from the six magazines on the approved list sole­
ly by reason of the fact that they picture and describe the 
activities of Negroes. We invite the Court's consideration of 
the issues of these publications which are in the record. The 
April and August 1967 issues of Sepia (Resp. Exh. 4, Pet. Exh.A) 
and the March Ebony (Resp. Exh 3) feature articles about Negro 
politicians, entertainers, sports figures, scientists and re­
ligious leaders. News of the civil rights movement is promiment; 
e.g. "Little Rock Ten Years Later" ("After a decade of painful 
transformation from bigotry and ignorance 'city of hate' emerges 
with dignity and pride") (Pet. Exh. A). The tone is conventional; 
layout familiar. Editorial policy is restrained. Not a word in 
either publication encourages or condones use of violence or crime 
as a solution to the problems of the American Negro. On the

14



contrary, the prevailing ethic is that only through hard work 
and political organization have Negroes been able to make progress. 
Coverage of riots seem somewhat more restrained than that found in 
U.S. News and World Report and Newsweek —  two "approved" publica­
tions which have been made part of the record (Pet. exh. B, C).
A Negro newspaper publisher and two librarians testified that the 
Negro publications were informative and educational and that they 
were either available or qualified to be available at Jacksonville, 
Florida Public libraries. (Tr. 80, 82-89) In short, the cnly thing 
which distinguishes Ebony and Sepia from "approved" publications is 
that they are written about Negroes, with a point of view aimed at 
a Negro audience.

With respect to the Negro magazines —  as opposed to the 
home town rule —  various administrative justifications for ex­
clusion were raised. None bears scrutiny. It was said that news 
and picture reports of riots were found in Ebony and Sepia and 
that such stories might harm prison discipline. (Tr. 19, 43, 55)
It is obvious, however, as the district court noted and Godwin 
conceded, that the reading matter presently available to inmates also 
containssuch material (Tr. 48, 95, 97) (See e.g.. Pet. Exh. C).
It was said that the magazines contained material which would have 
to be screened out (Tr. 23) and that the prison did not have the 
personnel to do this on a large scale. (Tr. 35) It was conceded, 
however, that the presently "approved" white publications also have 
to be screened (Tr. 99-100). There appears, therefore, ro reason 
why Negro magazines could not be on the approved list and be

15



subjected to the same screening white publications receive to 
eliminate the articles which prison authorities find objectionable 
in those publications. Although in pleadings respondent alleged 
that Ebony and Sepia "incite and stimulate in an unhealthy manner" 
Mr. Godwin withdrew this allegation with regard to Ebony (Tr. 19). 
He objected only to one small advertisement (Tr. 39) and one 
picture of a tribal woman (Tr. 55) in two issues of Sepia. The 
picture is of the sort which fills the pages of National Geographic 
magazine, which is on the approved list. (Tr. 26)

Appellant readily concedes that deference is to be accorded 
to the judgment of prison officials in formulating policy with 
respect to receipt of periodicals. Indeed, prison authorities 
could for disciplinary reasons deny entirely to any inmate, or to

5/all inmates, the opportunity of receiving periodicals. To concede 
this, however, is not to say that any magazine or newspaper policy 
may cloak racial discrimination, or that unsupported incantations 
of the classic formula —  "discipline", "security", "discretion" —  
are sufficient to immunize the policy from scrutiny. Here the 
discriminatory result is plain: the white half of the unit's 1100
population may choose among six magazines which reflect the values 
and perspective of the dominant race; the Negro half does not 
have the opportunity to select a magazine published for the Negro

5/ The disciplinary problems of the petitioner cannot, however,
justify the respondent's publication policy which applies to him 
and all Negro inmates without regard to their disciplinary 
record.

16



reader. All white prisoners who come from communities with news­
papers are able to receive white newspapers; a Negro must come 
from one of the Sew home towns with a Negro paper. While 
Jackson may not receive a Negro paper from a city a few miles 
away, certain white papers are available to inmates regardless 
of their home town. In selecting publications prison authori­
ties made no attempt to consider the reading interest of Negro 
inmates.

On the other hand, reasonable alternatives which do not burden 
Negro inmates exist; they could be permitted to receive one Negro 
newspaper instead of a "home town" white paper and a Negro maga­
zine selected for quality by prison officials. In such circum­
stances, we submit that respondent must at least come forward with 
a justification for exclusion of publications directed to Negro 
readers sufficient to negate the inference of racial discrimination. 
None has been supplied. Even in its prisons the state may not 
adopt a rule which burdens a Negro but not a white in the exercise 
of a right or privilege.

With respect to the issue before this Court, the Fourth 
Circuit has held that a general denial of Negro publications to 
Negro prisoners, while white prisoners are free to obtain white 
publications, denies Fourteenth Amendment rights to a state 
prisoner. Rivers v. Royster, 360 F. 2d 593 (4th Cir. 1966). While 
Rivers was decided on pleadings, the cases confirm that the marked 
discriminatory effect shown here establishes unconstituticnal action. 
In Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723

17



(4th Cir. 1966) for example, the Fourth Circuit struck down a re­
quirement, although facially non-racial, that a Negro applicant 
obtain a recommendation from two of 1214 white dentists in order 
to be admitted to a State dental society. I-Iawkins relied on this 
Court's decision in Meredith v. Fair, 298 F.2d 696, 701, 702 (5th 
Cir. 1962), where a state university sought to justify rejection of 
a Negro on the ground that he had not furnished required certifi­
cates of good character from five alumni, all of which were white. 
Such a requirement was a violation of the equal protection of the 
law because it imposed " a heavy burden on qualified Negro students, 
because of their race." Similar requirements were invalidated in 
Ludley v. Board of Supervisors, 150 F. Supp. 900 (E.D. La. 1957), 
affirmed 252 F.2d 372 (5th Cir. 1958), cert. den. 358 U.S. 819, 
and Hunt v. Arnold, 172 F. Supp. 847, 849 (N.D. Ga. 1959). See 
also. United States v. Wilbur Ward, 345 F.2d 857 (5th Cir. 1965); 
United States v. Mississippi, 339 F.2d 679 (5th Cir. 1964); 
Louisiana v. United States, 380 U.S. 145 (1965); Smith v. Morrilton,
365 F.2d 770 (8th Cir. 1966).

The severe discriminatory consequences of the home town rule 
and the total exclusion of Negro magazines are a violation of the 
Constitution. "Equal protection of the laws is not achieved by 
indiscriminate imposition of inequalities" Shelley v. Kraemer,

t/334 U.S. 1, 22 (1948); McLaughlin v. Florida, 379 U.S. 184 (1964)

6_/ Nor may respondent take refuge in his presumed good faith.
"It is of no consolation to an individual denied equal pro­
tection of the laws that it was done in good faith" Hurton 
v. Wilmington Parking Authority, 365 U.S. 714, 725 (1961).

18



i

United States v. Logue, 344 F.2d 290 (5th Cir. 1965), is an 
instructive decision. There this Court held invalid a requirement 
that required vouchers for applicants registering in a county where 
no Negroes had been registered. The voucher requirement "inevi­
tably imposes a greater burden on Negroes than whites under exist­
ing dominant social patterns" and by reason of "imposing as it does a 
heavier burden on Negroes than on white applicants is inherently 
discriminatory as applied." (344 F.2d at 292). The Court did not 
inquire into the purpose of the voucher rule; rather, it focused 
on the rule's effect and found that it fell more heavily on 
Negroes than on whites. The "dominant social patterns" in this 
case result in few of the home towns of Negroes having papers 
which feature news about Negroes while most all whites come from 
home towns with white newspapers. They also result in white prison 
officials selecting only white magazines and rejecting, without 
convincing justification, comparable Negro publications, although 
half of the potential readers are Negroes.

Although as the district court put it "it is not the duty of 
the federal courts to supervise the general administration of 
state prisoners" (R.45) it is well established that "prisoners do 
not lose all their constitutional rights, and that Due Process and 
Equal Protection Clauses of the Fourteenth Amendment protect against

Vunconstitutional action on the part of prison authorities." And it

7/ Cooper v. Pate, 378 U.S. 546, (1965); Cochran v. State of
Kansas, 316 U.S. 255, (1942); Sewell v. Pegelow, 291 F.2d
196 (4th Cir. 1961); Pierce v. La Vallee, 293 F.2d 233 
(2nd Cir. 1961); Fulwood v, Clemmer, 111 U.S. App. D.C.
184, 295 F.2d 171 (1961).

19



9

is unmistakably clear that "racial discrimination by governmental
authorities in the use of public facilities cannot be tolerated"
Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), probable
jurisdiction noted 18 L. ed. 2d. 988 (1967). See also Board of
Managers v. George 377 F.2d 288 (8th Cir. 1967) cert. den. 36
U.S.L. Week 3144;Singleton v. Board of Commissioners, 356 F.2d 771
(5th Cir. 1966). Even considerations of prison security or
discipline do not permit the state to distinguish racially save in
the most extraordinary and compelling circumstances and such
considerations never permit the state to follow a general practice

§/of arbitrary treatment based on race. Washington v. Lee, supra.
We submit that in his handwritten petition, drafted prior 

to the appointment of counsel on his behalf, appellant Jackson 
stated the principle which governs this case:

Petitioner realize the resoondent has under state law authority to regulate prisoners reading 
literature, still petitioner thoroughly scrutinized 
the Correctional Penal Code, and see (sic) law 
giving him the authority to practice racial 
discrimination nor to promulate racial discrimina­
tory rules to regulate literature on a discrimina­
tory basis, such as being exhibited in this instant (sic) (R. 10).
In a recent District of Columbia case a newspaper publisher 

complained that the Secretary of Defense acted arbitrarily in re­
fusing to permit its publication to be sold on Army bases in the 
Far East. The Secretary claimed that the approval of publications 
fell within the unreviewable discretion of the Department of Defense
8/ Indeed, the very premise on which respondents attempted 

justifications rest —  that magazines and papers of this 
sort incite behavior —  is subject to the greatest doubt, 
see Roth v. United States. 354 U.S. 476, 501 (1957)
(opinion of Mr. Justice Harlan).

20



'4

and the district court agreed. In reversing, the court of appeals 
held that even though there is no right to sell a publication at 
army bases the Secretary may not act arbitrarily: "publishers of
newspapers may fairly claim to be governed by uniform standards" 
Overseas Media Corp. v. McNamara, 36 U.S.L. Week 2217. If this 
reasoning applies to the Secretary's discretion in governing the 
military establishment, it surely applies to prison authorities 
once they determine to permit inmates access to newspapers and 
magazines.

The prison's publication policies should also be appraised 
in light of the First Amendment. Rights of free speech and ex­
pression necessarily include the right of freeaccess to publications 
"The dissemination of ideas can accomplish nothing if otherwise 
willing addressees are not free to receive and consider them. It 
would be a barren marketplace of ideas that had only sellers and 
no buyers." Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) 
(Brennan, J., Concurring). Concededly, the protections of the 
First Amendment are relaxed in the case of prisoners, but as First 
Amendment rights are involved government has the duty to confine 
itself to the least intrusive regulation adequate for the purpose 
of maintaining prison discipline and administration, NAACP v.
Button, 371 U.S. 415, 438, 439 (1963). Respondent has simply 
failed to come forward with sufficient justification for generally 
denying appellant access to Negro publications. See Burnside v. 
Byars, 363-F. 2d 744 (5th Cir. 1966).

21



To sum up: The record shows that the prison's publications
policy treats Negroes harshly; that the policy was formulated 
without consideration of the interests of Negro inmates; that 
jus tifications given for exclusion of Negro publications are un­
convincing; and that reasonable alternatives to the present 
policy exist. Respondent should be ordered to permit appellant 
and other Negro inmates similarly situated to receive Negro 
newspapers and magazines.

CONCLUSION
WHEREFORE, appellant prays that the judgment below be 

reversed.

V

EARL M. JOHNSON
625 West Union Street 
Jacksonville, Florida

JACK GREENBERG 
MICHAEL MELTSNER 

10 Columbus Circle 
New York, New York

Attorneys for Appellant 

CERTIFICATE OF SERVICE

This is to certify that on the ____day of November, 1967, I
served a copy of the foregoing brief for appellant on the attorney 
for respondent David U. Tumin by depositing same in the United 
States mail, air mail, postage prepaid addressed to him at the 
Capitol Building, Tallahassee, Florida.

Michael Meltsner 
Attorney for Petitioner