OAKES, Circuit Judge:
Plaintiff-appellant Wilkinson is awaiting trial in the Monroe County Jail, Rochester, New York, because he could not raise bail. He appeals from the district court's dismissal, without a hearing, of his § 1983 action
Appellant requests reversal of the judgment below and remand for a three-judge court proceeding to decide his challenge to the constitutionality of 7 NYCRR § 5100.10(e),
As to mail to and from counsel, this court had already made it very clear that prison officials who would interfere with first amendment rights bear a heavy burden to show abuse in terms of transmittal of contraband or the laying of plans for some unlawful scheme See Wright v. McMann, 460 F.2d 126 (2d Cir. 1972); Sostre v. McGinnis, 442 F.2d 178, 200-201 (2d Cir. 1971), cert. denied, Oswald v. Sostre, 405 U.S. 978 (1972). See also Carothers v. Follette, 314 F.Supp. 1014, 1024 (S.D.N.Y. 1970). Several of the cases from other circuits take the same view. E.g., Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972), aff'g 328 F.Supp. 162 (D. Me. 1971) (Gignoux, J.); see Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971). This case was all the more compelling because sixth amendment rights were also involved.
Since argument, however, the State Commission of Correction approved amended regulations, set out in the margin,
We construe the amended regulation to mean that there is no limitation on the amount of "special correspondence" a detainee may have with counsel. § 5100.10(e) (6). Clearly the regulation forbids examination or censorship of the content of such correspondence, even while it permits inspection for contraband, in the presence of the detainee. Such a provision adequately protects the sixth amendment right of detainees to effective assistance of counsel and precludes the official censorship or the reading that may so adversely affect the the inmate's free exercise of the right to consult with counsel.
We take the same view of that portion of the amended regulation which permits reading of other than "special" incoming and outgoing correspondence "to protect the safety and security of the facility and the welfare and best interests of the prisoners" and refusal to mail outgoing letters or to accept incoming mail "where it is apparent that there exists a clear and present danger to the jail or penitentiary." This language represents a considerable improvement over the earlier regulations. Sostre v. McGinnis, supra, 442 F.2d at 201, did "leave a more precise delineation of the boundaries of this protection [against censorship] for future cases." See Wright v. McMann, supra, 460 F.2d at 136 (concurring opinion). But under the new regulations censorship (by non-mailing) is apparently permitted only in the case of a "clear and present danger" to the facility's security, so that the new regulations have made a "more precise delineation," and one that appears to us to balance the conflicting interests appropriately. See also Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971).
Absent a showing that appellant's correspondence with his mother in Los Angeles
We affirm the judgment below for mootness.