546 F.2d 284 (9th Cir. 1976), 75-3643, KQED, Inc. v. Houchins

Docket Nº:75-3643.
Citation:546 F.2d 284
Party Name:KQED, INC., et al., Plaintiffs-Appellees, v. Thomas L. HOUCHINS, Individually and in his official capacity as Sheriff of Alameda County, Defendant-Appellant.
Case Date:November 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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546 F.2d 284 (9th Cir. 1976)

KQED, INC., et al., Plaintiffs-Appellees,


Thomas L. HOUCHINS, Individually and in his official capacity as Sheriff of Alameda County, Defendant-Appellant.

No. 75-3643.

United States Court of Appeals, Ninth Circuit

November 1, 1976

Rehearing and Rehearing In Banc Denied Dec. 22, 1976.

Kelvin H. Booty, Jr. (argued), of County Counsel, Oakland, Cal., for defendant-appellant.

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William Bennett Turner (argued), of San Francisco, Cal., for plaintiffs-appellees.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PREGERSON, [*] District Judge.

PREGERSON, District Judge:

This is an appeal from the trial court's issuance of a preliminary injunction restraining appellant, the Sheriff of Alameda County, California, from depriving appellees of their First and Fourteenth Amendment rights by "excluding as a matter of general policy . . . responsible representatives of the news media from the Alameda County Jail facilities at Santa Rita, including the Greystone portion thereof. . . . 1 To allow "full and accurate coverage" of jail conditions, the preliminary injunction requires that the reporters be given access to Santa Rita "at reasonable times and hours," and that they be allowed to use photographic and sound equipment and to interview inmates. The specific method of implementing media access was left to the Sheriff's determination, and the Sheriff was given discretion to exclude the media when jail tensions made such access dangerous. The question presented on appeal is whether the terms of this preliminary injunction, entered after a full evidentiary hearing, constitute an abuse of the trial court's discretion.

Clearly, the First Amendment grants the news media a constitutionally protected right to gather news. See Branzburg v. Hayes, 408 U.S. 665, 681-707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), Pell v. Procunier, 417 U.S. 817, 833, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). This right is indispensable in preserving the news media as a major source of information for the public, particularly when the information sought concerns governmental institutions, including prisons. See Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). The conditions of our nation's prisons "are a matter that is both newsworthy and of great public importance." Pell v. Procunier, 417 U.S. at 830, n.7, 94 S.Ct. at 2808.

The parties, however, dispute whether the scope of this news-gathering right encompasses the kind of access to Santa Rita Jail granted the news media by the preliminary injunction. Appellant relies on the Supreme Court's observation that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public." 2 Pell v. Procunier, supra,417 U.S. at 834, 94 S.Ct. at 2810. On the basis of this statement, appellant argues that this preliminary injunction is an abuse of discretion because it permits reporters to view Santa Rita Jail and communicate with its inmates in ways denied the public during scheduled monthly tours of the facility.

The above-quoted language from Pell v. Procunier simply states that the news media's constitutional right of access to prisons or their inmates is co-extensive

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with the public's right. Implicit in the trial court's memorandum granting the preliminary injunctions is the finding that the First Amendment rights of both the public and the news media were infringed by appellant's restrictive policy. Although the memorandum does not explicitly mention the public's rights, the trial court applied the proper test to determine whether these rights were infringed: a governmental restriction on First Amendment rights can be upheld only if the restriction furthers an important or substantial governmental interest unrelated to suppressing speech and the restriction is the least drastic means of furthering that governmental interest. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The preliminary injunction, while protecting First Amendment rights, also satisfies the governmental interests in security of the jail and privacy of inmates. The Sheriff can exclude media access when jail security is threatened, make reasonable time, place, and manner restrictions, and develop appropriate administrative regulations that require searches of reporters, identification of press representatives, and consent from inmates for interviews and photographs.

Having determined that appellant's restrictive policy was an infringement of constitutional rights, the court did not err by issuing an injunction that, on its face, grants greater prison access to the news media than the access accorded the public on monthly guided tours of the facility. Pell v. Procunier does not stand for the proposition that the correlative constitutional rights of the public and the news media to visit a prison must be implemented identically. The access needs of the news media and the public differ. Media access, on reasonable notice, may be desirable in the wake of a newsworthy event, while the interest of the public in observing jail conditions may be satisfied by formal, scheduled tours. Moreover, the administrative problems inherent in public and media access differ. A large public tour group creates a greater security threat and requires the use of more jail personnel to supervise the tour, while a single reporter, known to jail officials, should cause minimal, if any, interference to jail routine. Although both groups have an equal constitutional right of access to jails, because of differing needs and administrative problems, common sense mandates that the implementation of those correlative rights not be identical.

In the circumstances of this case, we cannot say that the trial court's issuance of the preliminary injunction was an abuse of discretion. Its order granting the preliminary injunction is therefore affirmed.

To determine the questions of infringement of the correlative rights of the public and the media and the means by which these rights are to be implemented, the trial court should consider the kind of access accorded the news media and the public in the California state prison system, as discussed in Pell v. Procunier, and the access accorded by the federal prison system as set forth in Policy Statement No. 1220.1B, a copy of which is attached as Appendix A.


1. PURPOSE. To establish, for a trial period of July 1 December 31, 1976, the policy of the Bureau of Prisons with respect to the news media. 2. POLICY. The Bureau of Prisons recognizes the desirability of establishing a policy that affords the public greater access to news about its operations. The policy is not

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designed to provide publicity for inmates or special privileges for the news media, but rather to insure a better informed public. The correspondence and interviews, in a prison setting, must be regulated to insure the orderly and safe operation of the institution.

3. DIRECTIVE AFFECTED. Policy Statements 1220.1A and 1220.6/7300.96 are superseded by this Policy Statement. 4. PROCEDURE.

a. Application.

(1) For the purposes of this policy statement representatives of news media shall be defined as the following: Persons who are primarily employed in the business of gathering or reporting news for (a) a newspaper qualifying as a general circulation newspaper in the community to which it publishes, (b) news magazines having a national circulation being sold by newsstands to the general public and by mail circulation, (c) national or international news services, (d) radio and television news programs of stations holding Federal Communication Commission Licenses. Persons currently confined as prison inmates may not be employed or used as reporters under this policy statement. A newspaper is one of "general circulation" if it circulates among the general public and if it publishes news of a general character and of general interest. A key test to determine whether a newspaper qualifies as a Page 2 1220.1B 7/1/76 "general circulation" newspaper is to determine whether the paper qualifies for the purpose of publishing legal notices in the community in which it is located or the area to which it distributes. It is generally held that for a newspaper to be considered in law a newspaper of general circulation, and so be qualified to publish legal notices, it must contain items of general interest to the public such as news of political, religious, commercial, or social affairs. (2) Interviews by reporters and others not included in 4a(1), may be permitted only by special arrangement and with approval of the Warden. (3) These regulations apply to all inmates in Federal institutions. When an inmate is confined in any non-Federal facility the local or state facility rules and regulations will govern.

b. Institution Visits.

(1) Representatives of the news and other media are encouraged to visit Bureau institutions for the purpose of preparing reports about institutional facilities, programs and activities. Media representatives shall make advance appointments for visits. During an institutional emergency, and for a reasonable time thereafter, the Warden may suspend all such media visits. (2) When media representatives visit institutions, photographs of programs and activities may be taken, and media representatives may meet with groups of inmates engaged in authorized programs and activities. Inmates have the right not to be photographed, (still, movie or video), and not to have their voices recorded by the media. Visiting representatives shall be required to obtain permission before photographing or recording the voices of inmates participating in authorized programs and activities and shall be...

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