A prisoner's right to write

DANNIE MARTIN says he was just exercising the constitutional right to speak his piece. His doing so, however, has led to a three-way battle between Martin, federal penal authorities, and the San Francisco Chronicle - the newspaper Martin contributes articles to. The controversy is being litigated in the federal courts and could someday be finally settled by the United States Supreme Court.

Mr. Martin is no ordinary newsman. He's a prisoner who is serving a 33-year term at a federal penitentiary in California for bank robbery. About two years ago he offered a story on life-behind-bars to Peter Sussman, editor of the Chronicle's Sunday Punch section.

Mr. Sussman liked what he saw and published it. He has since printed some 20 articles under Martin's byline.

Aside from positive reader response, the stories commanded no special attention until June 19. Then the inmate suggested in print that the hard-line policies of a new warden at the Lompoc facility he was confined in were causing resentment - and even talk of riots - among the prisoners.

Prison warden Richard Rison took exception. And he said other prisoners were very upset by the story. Mr. Rison placed Martin in ``protective custody'' for a day, ostensibly for his own safety. Martin insists, however, that he was really put in ``solitary confinement'' and not for personal protection - but in response to what he wrote.

Editor Sussman agreed with the inmate. He termed the warden's action ``retaliatory,'' especially since during this time Martin was removed from Lompoc and sent to another penal institution, in San Diego. He was later moved to Phoenix.

Martin and Mr. Sussman also took issue with Rison's ``sudden'' invoking of a longstanding Bureau of Prisons regulation that bars an inmate from selling articles to the news media. They argued that such a rule severely limits a prisoner's free-speech rights. And they claimed that the prohibition is selectively enforced and inconsistent with other policies that allow a convict to appear on television and write signed letters to the news media.

Relief is being sought in the courts. A hearing on the legality of the regulation is scheduled in federal court in late August.

Meanwhile, district judge Charles Legge has ruled that Martin and the Chronicle have made a ``substantial showing'' that there was retaliatory action against the inmate for ``exercise of his constitutional rights.''

Judge Legge, however, rejected attempts by Martin and the newspaper to block prison officials from moving the inmate from one penal facility to another.

The judge also upheld the no-byline-by-prisoners regulation, at least until a further hearing. He cited a 1987 US Supreme Court decision supporting rules that impinge prisoners' rights when ``reasonably related to legitimate prison interests.''

Mr. Legge clearly differentiated between Martin's First Amendment rights and those of the Chronicle. He said the newspaper clearly had the discretion to print any story it received from Martin. He added, however, that the newspaper would do so at the risk of subjecting the prisoner to punishment under the federal regulations.

San Francisco lawyer Jeffrey Leon - whose firm has agreed to represent Martin on a pro bono (no pay) basis - says that a restraint on the inmate's writing for a newspaper serves no ``penological purpose.'' And he stresses that, in fact, this activity has been therapeutic for his client, turning him into a better-behaved prisoner.

Leon further adds that the regulation is biased, because it allows those incarcerated to appear on television and write books but discriminates against newspapers.

The court, it is hoped, will find a proper balance between protecting Martin's individual rights and maintaining prison discipline and security.

There is ample precedent for restricting certain rights of inmates, at least temporarily, especially where there is a potential danger to others in the community.

The basic concept of incarceration involves a surrender of liberty. A prisoner, however, does not forfeit his guarantee of free speech when he goes behind bars.

And it would seem in this case that the creative outlet should be encouraged rather than stifled.

There have been some initial attempts to find an accommodation between the warden and the editor. These should be further encouraged and guidelines agreed to - such as those apprising prison authorities of the subject matter of an article about to be published.

No newspaper worth its salt, of course, would agree to prior restraint - or pre-publication censorship. Ample opportunity for the warden or other officials to respond to criticism, however, seems fair.

And the time may be ripe to review the fairness of the code and consider its modification.

Dannie Martin reportedly quipped that he turned to writing after he failed as a citizen and a bank robber. Perhaps his forays, and tribulations, as a journalist will help rehabilitate him as a citizen.

A Thursday column