Washington Post Company v. Kleindienst, 72-1362.

• Decision Date: 06 September 1972
• Docket Number: No. 72-1362.,72-1362.
• Citation: 477 F.2d 1168
• Parties: The WASHINGTON POST COMPANY et al. v. Richard G. KLEINDIENST, Acting Attorney General of the United States, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

477 F.2d 1168 (1972)

The WASHINGTON POST COMPANY et al. v. Richard G. KLEINDIENST, Acting Attorney General of the United States, et al., Appellants.

No. 72-1362.

United States Court of Appeals, District of Columbia Circuit.

Argued June 30, 1972.

Decided September 6, 1972.

Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellees. John A. Terry, Joseph M. Hannon, Michael A. Katz, and Robert D. Zsalman, U.S. Attys., also entered appearances for appellants.

Joseph A. Califano, Jr., Washington, D.C., with whom Charles H. Wilson, Jr. and Richard M. Cooper, Washington, D. C., were on the brief, for appellees.

Melvin L. Wulf, New York City, and Hope Eastman, Washington, D. C., filed a brief on behalf of Tom Wicker and others as amici curiae urging affirmance.

Before McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges.

ORDER

PER CURIAM.

This case came on for hearing on an appeal from a ruling by the District Court, reflected in a memorandum opinion dated April 9, 1972, 357 F.Supp. 770, that the policy of the Federal Bureau of Prisons in denying all requests by the press to interview designated prisoners violated the First Amendment. The Court directed the Bureau to modify its rules within 30 days to permit such interviews under terms and conditions appropriately reflective of administrative and disciplinary considerations. That decision is presently subject to a stay by the Supreme Court, issued May 13, 1972, pending appeal in this court.

At the oral argument, the Government pressed upon us a supervening decision by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, decided June 29, 1972, as representing a significant limitation by the Supreme Court of the reach of the First Amendment in relation both to the precise issue immediately involved in the three cases then decided, and to the general area of press guarantees. Branzburg, unlike the case before us, compelled revelation by reporters to grand juries of information gathered by them, but the First Amendment claim rested heavily upon the assertion that access to information would be restricted if such compulsion was exerted. One of the cases heard by the Supreme Court with Branzburg and reversed by it, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), was cited by the District Court as relevant to the scope of press access.

Since the case before us deals with the scope of First Amendment rights to access, Branzburg supplies a new element to be considered in the decisional process which was not in existence at the time the record was made and the conflicting claims resolved in the District Court. It seems obvious that considerations of sound judicial administration suggest that any record for future appellate consideration be made in awareness of it, if that is feasible under the circumstances,...