Garrett v. Estelle, 77-1351

• Decision Date: 03 August 1977
• Docket Number: No. 77-1351,77-1351
• Citation: 556 F.2d 1274
• Parties: 2 Media L. Rep. 2265 Tony GARRETT, Plaintiff-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1274

556 F.2d 1274

2 Media L. Rep. 2265

Tony GARRETT, Plaintiff-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants-Appellants.

No. 77-1351.

United States Court of Appeals Fifth Circuit.

Aug. 3, 1977.

John L. Hill, Atty. Gen., Joe B. Dibrell, Jr., Asst. Atty. Gen., Chief, Enforcement Div., David M. Kendall, Jr., Asst. Atty. Gen., Austin, Tex., for defendants-appellants.

James D. Whisenand, Deputy Atty. Gen., State of Fla., Dept. of Legal Affairs, Tallahassee, Fla., amicus curiae, for 24 states and Puerto Rico.

Fred E. Time, Tom S. McCorkle, Jr., Peter A. Lesser, Dallas, Tex., for plaintiff-appellee.

Dan P. S. Paul, Miami, Fla., amicus curiae, for Reporter's Committee on Freedom, et al.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

The question for decision is whether a news cameraman can require the State of Texas to permit him to film executions in state prison for showing on television. Texas denied the right to film executions to Tony Garrett, a TV news cameraman, who then brought this action seeking an injunction to require access for that purpose. The State would allow full access to the event by newsmen, but deny recording of an execution by any mechanical means, such as photography, sound recording or motion picture. The district court ordered Texas to permit Garrett to attend and film executions.

On appeal the State asserts that the first amendment does not impose on it an affirmative duty to make executions available for mechanical recording or photographing. Garrett contends that to prevent him from filming executions deprives him of rights as a newsman guaranteed under the first and fourteenth amendments. We hold that the protection which the first amendment provides to the news gathering process does not extend to matters not accessible to the public generally, such as filming of executions in Texas state prison, and therefore that Garrett has no such right. Accordingly we reverse the holding of the district court.

The record indicates that Texas has not executed a prisoner since 1964. In November 1976, Garrett, a news reporter for a Dallas, Texas television station, requested permission of the Texas Department of Corrections to film the first execution of a prisoner to take place under Texas' new capital punishment statute, and to film interviews with death row inmates. Permission was denied. Shortly thereafter Texas promulgated a "Media Policy: Execution Proceedings" which provided for one representative each from the Associated Press and United Press International to be present at time of execution in the execution chamber as press pool representatives; also facilities at which other press corps members could view a simultaneous closed circuit telecast of the execution; and access to death row inmates for interviews. ¹ This policy was soon repudiated, however, because in the opinion of Texas Corrections Commissioner Estelle, Texas Code of Criminal Procedure articles 43.17 and 43.20 effectively prohibited press access to death row inmates and press attendance at executions. ² Garrett's complaint sought judgment declaring article 43.20 unconstitutional, and an injunction prohibiting Texas from preventing him from filming executions and interviews with death row inmates.

On January 5, 1977, the district judge in a preliminary injunction declared article 43.17 unconstitutional in light of the first and fourteenth amendments. The district judge ordered that press visits to death row and the AP-UPI press pool provisions be reinstituted according to the guidelines originally proposed by Texas. The district judge further ordered that Garrett be allowed to witness and film executions. Garrett would then televise all or portions of the film at a later time.

On February 11, 1977, Texas moved to dismiss Garrett's suit and to modify the district court's injunction by deleting the portion ordering the State to allow Garrett to witness and film executions. Accompanying the motions was Texas' statement of intent to adhere to the guidelines which the district judge had ordered reinstituted, and to seek amendment by the State Legislature of article 43.17 to permit interviews with death row inmates. Texas also renewed its proposal that closed circuit television facilities be provided for the press at large. The district judge denied both motions.

Texas appeals only that portion of the district judge's preliminary injunction requiring Texas to admit Garrett to the execution chamber to film executions. The State relies on recent Supreme Court decisions holding that the press has no greater right of access to prisons or prisoners than has the general public. It further contends that since the public has no right under the first amendment to film executions, a member of the press has no such right.

Garrett asserts a first amendment right to gather news, which he contends can be limited only on account of a compelling state interest. He further argues that preventing him from using a motion picture camera to gather news denies him use of the tool of his trade and therefore denies him equal protection of the laws. Garrett also contends that the denial amounts to a prior restraint on publication. Amicus curiae further argues that the closed circuit telecast which Texas proposes to provide to the press is a publication, and preventing members of the press from recording the telecast constitutes an illegal restraint on republication.

News gathering is protected by the first amendment, for "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972). This protection is not absolute, however. As the late Chief Justice Warren wrote for the Supreme Court, "The right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965). In Branzburg the Court said, "It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Branzburg v. Hayes, supra, 408 U.S. at 684, 92 S.Ct. at 2658. Relying on Branzburg and Zemel the Court has recently held, "The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally." Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974); accord, Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514 (1974).

At issue in Pell and Saxbe were state and federal prison regulations prohibiting prearranged press interviews with individually selected prisoners, though press access to the prison and to prisoners encountered therein was permitted. Members of the press brought an action to protect "their right to gather news without governmental interference, which the media plaintiffs assert includes a right of access to the sources of what is regarded as newsworthy information." Pell v. Procunier, supra, 417 U.S. at 829-30, 94 S.Ct. at 2807-08. The press plaintiffs placed great value on prearranged personal interviews; they impressed upon the Court that

face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press.

Pell v. Procunier, supra, 417 U.S. at 833, 94 S.Ct. at 2809-10.

In each case the Supreme Court noted that the contested regulation was not part of an attempt by government to conceal prison conditions or to frustrate press investigations of those conditions. The Court further noted that the only restriction on news gathering at the prisons was the limited regulation against prearranged personal interviews; that the press was accorded in fact greater access to the prisons and inmates than the public generally. After taking into account the great importance placed on such interviews by the press, the Court held that first amendment protection of news gathering did not invalidate the prison regulations:

Accordingly, since (the regulation) does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee.

Pell v. Procunier, supra, 417 U.S. at 835, 94 S.Ct. at 2810; accord, Saxbe v. Washington Post Co., supra, 417 U.S. at 850, 94 S.Ct. at 2815.

In the present case Garrett and amicus attempt to distinguish Saxbe and Pell. Garrett points out that in those cases the press was allowed "substantial access" to the prison and inmates, so that "the only restriction upheld by Pell and Saxbe was the rule against press singling out specific inmates for interviews." Garrett would have us read those cases for that proposition alone. We cannot agree that those cases must be read so narrowly. The Court made no ad hoc determination in Saxbe and Pell ; it proceeded from the general principle, quoted above, that the press has no greater right of access to information than does the public at large; and that the first amendment does not require government to make available to the press information not available to the public. This principle marks a limit to the first amendment protection of the press' right to gather news. Applying this principle to the present case, we hold that the first amendment does not invalidate nondiscriminatory prison access regulations.

Garrett and amicus argue that the present case is not an access case, but a case involving a limitation on the content of what may be...