Petitioner
Thomas L. Houchins, Sheriff of the County of Alameda, California
Respondent
KQED, Inc.
Petitioner's Claim
That the news media has no special constitutional right of access to a countyjail beyond that of the public to interview, photograph, and sound record inmates and the facility for publication and broadcasting purposes.
Chief Lawyer for Petitioner
Kelvin H. Booty, Jr.
Chief Lawyer for Respondent
William Bennett Turner
Justices for the Court
Warren E. Burger (writing for the Court), William H. Rehnquist, Potter Stewart, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Lewis F. Powell, Jr., John Paul Stevens (Harry A. Blackmun and Thurgood Marshall did not participate)
Place
Washington, D.C.
Date of Decision
26 June 1978
Decision
Upheld Houchins's claim and overturned and remanded [sent back] the two lowercourts' findings that the news media has substantially unrestricted access rights to Alameda County Jail facilities.
Significance
The ruling established that although the press has no greater access rights to government information than the public, both the press and public must be provided some degree of controlled access. While the Supreme Court routinely rules on freedom of the press issues regarding publication of information heldby the news media, Congress is identified as the proper branch of governmentto establish limits on press access to government information. Though the press plays a critical role in the democratic system, limitations on news gathering do exist to safeguard certain government activities.
In 1972 District Court Judge Zirpoli found "shocking and debasing conditions. . . [which] constituted cruel and unusual punishment" at the Alameda CountyJail in Santa Rita, California. To answer negative press coverage, jail administrators later that year conducted a carefully supervised public tour of selected parts of the facilities normally not accessible. In March of 1975 a prisoner in the Little Greystone portion of the jail committed suicide. A psychiatrist attributed the suicide to the conditions of the facility. KQED, a SanFrancisco Bay area licensed television and radio broadcasting company, requested permission to inspect and take pictures within the Little Greystone portion of the facility. After the jail refused permission, KQED, joined by others, filed suit in U.S. district court claiming jail authorities violated theirFirst Amendment rights by refusing access to the news media and not providing for any means of public inspection. KQED asserted that television coverageof facility conditions would be the most effective means of informing the public of jail practices. Shortly after KQED filed the lawsuit, Houchins, sheriff of Alameda County, announced a new monthly public tour program through selected parts of the facility, excluding Little Greystone. Media would be treated as public and could not photograph or record within the facility. As in the1972 tour, inmates were generally kept from view.
The district court ruled in favor of KQED holding that neither KQED news personnel nor other news media representatives could be barred from the jail, including Little Greystone. The district court also ruled that news personnel could use photographic and sound equipment and conduct interviews "at reasonable times and hours." Sheriff Houchins appealed to the U.S. court of appeals which concurred with the district court's ruling by asserting a public and media First Amendment right of access to prisons and jails. Houchins next appealed to the U.S. Supreme Court.
Freedom to Gather News
Founders of the United States strongly believed an informed public was crucial to the proper functioning of a democracy. They considered the press critically important in serving a reporting function. Therefore, the First Amendmentprohibits government actions from "abridging the freedom of . . . the press." This "Press Clause" has since served an important social function by ensuring a free flow of information to the general public. With the dramatic growthof the federal government during the 1930s and 1940s, the press assumed an even greater role after World War II in maintaining vigilance over governmentactivities.
Demands for access to government information correspondingly increased beyondthat enjoyed by the general public. However, through the 1960s, while the courts established considerable freedom from restraints on the publication of information, they did not so readily recognize such freedom in news gathering.The topic of news media access to government information surged to nationalprominence in 1971 over controversy related to publication of the Pentagon Papers by the New York Times and Washington Post. The 7,000 pagesof confidential documents revealing U.S. policies toward Vietnam was the subject of New York Times Company v. United States (1971). In that case,the Court acknowledged a broad press right to publish information it obtained, while holding the government to a very strict standard in limiting press access to restricted information. Later in the 1970s in the Pell v. Procunier (1974) and Nixon v. Warner Communications, Inc. (1978) cases, the Court held that no special rights existed for media access to either criminal trials or prisons.
Houchins argued before the Court that broader access by the media would infringe on inmate privacy, create jail "celebrities" who could then generate problems within the jail, disrupt jail operations, and compromise security in general. Houchins noted other means available to inform the public, such as prison mail, personal visitations, and phone calls. Consenting inmates awaiting trial were also available for interview.
KQED countered that the First Amendment guaranteed a special right to gathernews including access to government-controlled sources of information, such as interviewing inmates or photographing inside jail facilities. They argued such access was imperative for the public to be informed of governmental actions. KQED stressed the newly instituted monthly tours did not satisfactorily address access issues due to certain imposed restrictions.
Chief Justice Burger, in delivering the 4-3 majority opinion of the Court, referred back to Pell in which the Court held, "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." Though the role of the news media is important, they couldnot be granted greater access than the public, contrary to the district court finding. Burger wrote that the First Amendment does not provide a "guarantee of a right of access to all sources of information within government control." More generally, in the Branzburg v. Hayes (1972) case, the Court held that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally."No "unrestrained right to gather information" exists. In fact, Burger highlighted that some forms of governmental information must be withheld from the public so that government may be able to effectively function. Foreign diplomacy and maintenance of effective national defense require confidentiality andsecrecy. Without access restrictions, the United States would not be able tomaintain mutual trust with other nations and communications would be significantly hampered. Other examples of exclusion include grand jury hearings, and,on occasion, executions and court trials where privacy interests of prisoners, witnesses, jurors, or litigants are important. In many situations it is more appropriately a public official's responsibility to gather and provide information, not the news media's. However, Burger added that Pell did not imply that equal access by the public and press could constitute no access.In fact, the level of access should be substantial.
The majority firmly believed limits to access rights are more appropriately asubject for Congress to define. As established in Grosjean v. American Press Co. (1936), the focus of the Press Clause is the right to communicateinformation once it is obtained. Burger also stressed an equal weight is given to the public's constitutional right to receive such information. Burger listed various means the public has to gain information about public penal facilities, including citizen committee reports, prison board inspections, health and fire inspectors, grand jury investigations, inmate letters, lawyer interviews, former inmates, prison visitors, and jail personnel.
The Press Serves the Public
In dissent, joined by Justices Brennan and Powell, Justice Stevens wrote thatKQED was entitled to greater access than the public but to some measured degree less than that established by the lower court decisions. He described distinct differences between news media and the public, particularly that the former serves to inform the latter. U.S. society depends heavily on the press.For this reason "the First Amendment speaks separately of freedom of speech and freedom of the press." Stevens also noted the "unique function" prisons "perform in a democratic society [as] . . . an integral component of the criminal justice system." Not only does the public have a right to information regarding a trial, but equally a right in knowing how a convicted person is treated while serving a sentence. For example, Stevens noted the Santa Rita's inmate population is predominantly black and the National Association for the Advancement of Colored People (NAACP) largely depends on the news media to keepinformed of their treatment. In addition, an inmate does retain "constitutional protections against cruel and unusual punishment." Therefore, the media should have "a more flexible and frequent basis" of access in order "to keep the public informed." However, access provided by the lower courts findings wastoo broad. Press access must be more carefully constructed. This concern isparticularly relevant for facilities such as Santa Rita where some inmates are detainees awaiting trial and enjoy the same constitutional rights to privacy as common citizens until convicted.
Impact
Despite the Court's shift to a more conservative political orientation in the1980s and 1990s, including a more restrictive view of constitutional rights,the press enjoyed as much freedom as ever. However, the importance of the Houchins case is the finding that the media's right of access to government information is no greater than the public's. Yet many agree with JusticeStevens that since the press serves to inform the public, its access should be greater. The press plays an important role not just in reporting information, but also in sifting through large quantities of information during its research. The Freedom of Information Act (FOIA), passed by Congress in 1988, served to provide public access to considerable amounts of government information. No comparable measure provides access to government facilities, such as prisons.
In regard to prison access, the national media watchdog group Fairness and Accuracy in Reporting (FAIR) focused in part on press censorship issues. FAIR identified three states in 1996 attempting to substantially restrict access ofjournalists to state prisons. Illinois banned one-to-one interviews with death row inmates. Virginia barred prison tours, photographs, and face-to-face inmate interviews. In addition to an interview ban, California sought to eliminate confidential mail privileges between inmates and members of the media. FAIR asserted that such actions not only gags the mouths of inmates--contraryto their First Amendment rights--but violates the news media's and public's constitutional rights of access as well.
The dispute over media access to government information increased through the1990s as competition among the media grew. The rise in popularity of sensationalist television tabloid shows also contributed to the push for greater access. There remains no clear principle for courts to apply in determining theappropriateness of access in specific cases. Legal scholars suggested severalkey principles to safeguard press access rights to government information. The principles involved protecting the news media from: (1) preferential treatment; (2) denial of access where traditionally allowed; and (3) access policythat seems to arbitrarily change without sufficient reason. Some contend that balancing, on a case-by-case basis, the right of press access against government interest in confidentiality, places the Court in undesirable situationsas the Houchins case demonstrated.
Related Cases
Talk Radio in the United States
Today, the right to a free and unfettered press includes other print media, as well as broadcasts over radio and television, in movies, and through electronic information. Broadcast media may have more governmental control than theprint media, but it still enjoys tremendous latitude in the discretion and choice of programming.
Radio talk show commentators and listeners calling the shows have the opportunity to discuss their opinions on various subjects. Shows offer discussion ofcurrent political issues, sports, psychology, and other topics of interest to the public. The ability to verbalize an opinion or subject that is controversial goes to the heart of citizens' First Amendment rights to free press andspeech.
Talk shows serving as a forum for political discussion allowing for varying points of view, without government censorship, are another means of sustaininga vigorous exchange of information. This was the original intent of the Constitution's prohibition against government interference with the press. The framers of the Constitution supported the expression of conflicting points of view, even if in opposition to governmental policies. They viewed this as a critical element in a democracy.
Sources
First Amendment Center--Press, http://www.fac.org/press/press97.htm. GrolierElectronic Publishing, Inc., 1995.
Thomas L. Houchins, Sheriff of the County of Alameda, California
Respondent
KQED, Inc.
Petitioner's Claim
That the news media has no special constitutional right of access to a countyjail beyond that of the public to interview, photograph, and sound record inmates and the facility for publication and broadcasting purposes.
Chief Lawyer for Petitioner
Kelvin H. Booty, Jr.
Chief Lawyer for Respondent
William Bennett Turner
Justices for the Court
Warren E. Burger (writing for the Court), William H. Rehnquist, Potter Stewart, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Lewis F. Powell, Jr., John Paul Stevens (Harry A. Blackmun and Thurgood Marshall did not participate)
Place
Washington, D.C.
Date of Decision
26 June 1978
Decision
Upheld Houchins's claim and overturned and remanded [sent back] the two lowercourts' findings that the news media has substantially unrestricted access rights to Alameda County Jail facilities.
Significance
The ruling established that although the press has no greater access rights to government information than the public, both the press and public must be provided some degree of controlled access. While the Supreme Court routinely rules on freedom of the press issues regarding publication of information heldby the news media, Congress is identified as the proper branch of governmentto establish limits on press access to government information. Though the press plays a critical role in the democratic system, limitations on news gathering do exist to safeguard certain government activities.
In 1972 District Court Judge Zirpoli found "shocking and debasing conditions. . . [which] constituted cruel and unusual punishment" at the Alameda CountyJail in Santa Rita, California. To answer negative press coverage, jail administrators later that year conducted a carefully supervised public tour of selected parts of the facilities normally not accessible. In March of 1975 a prisoner in the Little Greystone portion of the jail committed suicide. A psychiatrist attributed the suicide to the conditions of the facility. KQED, a SanFrancisco Bay area licensed television and radio broadcasting company, requested permission to inspect and take pictures within the Little Greystone portion of the facility. After the jail refused permission, KQED, joined by others, filed suit in U.S. district court claiming jail authorities violated theirFirst Amendment rights by refusing access to the news media and not providing for any means of public inspection. KQED asserted that television coverageof facility conditions would be the most effective means of informing the public of jail practices. Shortly after KQED filed the lawsuit, Houchins, sheriff of Alameda County, announced a new monthly public tour program through selected parts of the facility, excluding Little Greystone. Media would be treated as public and could not photograph or record within the facility. As in the1972 tour, inmates were generally kept from view.
The district court ruled in favor of KQED holding that neither KQED news personnel nor other news media representatives could be barred from the jail, including Little Greystone. The district court also ruled that news personnel could use photographic and sound equipment and conduct interviews "at reasonable times and hours." Sheriff Houchins appealed to the U.S. court of appeals which concurred with the district court's ruling by asserting a public and media First Amendment right of access to prisons and jails. Houchins next appealed to the U.S. Supreme Court.
Freedom to Gather News
Founders of the United States strongly believed an informed public was crucial to the proper functioning of a democracy. They considered the press critically important in serving a reporting function. Therefore, the First Amendmentprohibits government actions from "abridging the freedom of . . . the press." This "Press Clause" has since served an important social function by ensuring a free flow of information to the general public. With the dramatic growthof the federal government during the 1930s and 1940s, the press assumed an even greater role after World War II in maintaining vigilance over governmentactivities.
Demands for access to government information correspondingly increased beyondthat enjoyed by the general public. However, through the 1960s, while the courts established considerable freedom from restraints on the publication of information, they did not so readily recognize such freedom in news gathering.The topic of news media access to government information surged to nationalprominence in 1971 over controversy related to publication of the Pentagon Papers by the New York Times and Washington Post. The 7,000 pagesof confidential documents revealing U.S. policies toward Vietnam was the subject of New York Times Company v. United States (1971). In that case,the Court acknowledged a broad press right to publish information it obtained, while holding the government to a very strict standard in limiting press access to restricted information. Later in the 1970s in the Pell v. Procunier (1974) and Nixon v. Warner Communications, Inc. (1978) cases, the Court held that no special rights existed for media access to either criminal trials or prisons.
Houchins argued before the Court that broader access by the media would infringe on inmate privacy, create jail "celebrities" who could then generate problems within the jail, disrupt jail operations, and compromise security in general. Houchins noted other means available to inform the public, such as prison mail, personal visitations, and phone calls. Consenting inmates awaiting trial were also available for interview.
KQED countered that the First Amendment guaranteed a special right to gathernews including access to government-controlled sources of information, such as interviewing inmates or photographing inside jail facilities. They argued such access was imperative for the public to be informed of governmental actions. KQED stressed the newly instituted monthly tours did not satisfactorily address access issues due to certain imposed restrictions.
Chief Justice Burger, in delivering the 4-3 majority opinion of the Court, referred back to Pell in which the Court held, "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." Though the role of the news media is important, they couldnot be granted greater access than the public, contrary to the district court finding. Burger wrote that the First Amendment does not provide a "guarantee of a right of access to all sources of information within government control." More generally, in the Branzburg v. Hayes (1972) case, the Court held that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally."No "unrestrained right to gather information" exists. In fact, Burger highlighted that some forms of governmental information must be withheld from the public so that government may be able to effectively function. Foreign diplomacy and maintenance of effective national defense require confidentiality andsecrecy. Without access restrictions, the United States would not be able tomaintain mutual trust with other nations and communications would be significantly hampered. Other examples of exclusion include grand jury hearings, and,on occasion, executions and court trials where privacy interests of prisoners, witnesses, jurors, or litigants are important. In many situations it is more appropriately a public official's responsibility to gather and provide information, not the news media's. However, Burger added that Pell did not imply that equal access by the public and press could constitute no access.In fact, the level of access should be substantial.
The majority firmly believed limits to access rights are more appropriately asubject for Congress to define. As established in Grosjean v. American Press Co. (1936), the focus of the Press Clause is the right to communicateinformation once it is obtained. Burger also stressed an equal weight is given to the public's constitutional right to receive such information. Burger listed various means the public has to gain information about public penal facilities, including citizen committee reports, prison board inspections, health and fire inspectors, grand jury investigations, inmate letters, lawyer interviews, former inmates, prison visitors, and jail personnel.
The Press Serves the Public
In dissent, joined by Justices Brennan and Powell, Justice Stevens wrote thatKQED was entitled to greater access than the public but to some measured degree less than that established by the lower court decisions. He described distinct differences between news media and the public, particularly that the former serves to inform the latter. U.S. society depends heavily on the press.For this reason "the First Amendment speaks separately of freedom of speech and freedom of the press." Stevens also noted the "unique function" prisons "perform in a democratic society [as] . . . an integral component of the criminal justice system." Not only does the public have a right to information regarding a trial, but equally a right in knowing how a convicted person is treated while serving a sentence. For example, Stevens noted the Santa Rita's inmate population is predominantly black and the National Association for the Advancement of Colored People (NAACP) largely depends on the news media to keepinformed of their treatment. In addition, an inmate does retain "constitutional protections against cruel and unusual punishment." Therefore, the media should have "a more flexible and frequent basis" of access in order "to keep the public informed." However, access provided by the lower courts findings wastoo broad. Press access must be more carefully constructed. This concern isparticularly relevant for facilities such as Santa Rita where some inmates are detainees awaiting trial and enjoy the same constitutional rights to privacy as common citizens until convicted.
Impact
Despite the Court's shift to a more conservative political orientation in the1980s and 1990s, including a more restrictive view of constitutional rights,the press enjoyed as much freedom as ever. However, the importance of the Houchins case is the finding that the media's right of access to government information is no greater than the public's. Yet many agree with JusticeStevens that since the press serves to inform the public, its access should be greater. The press plays an important role not just in reporting information, but also in sifting through large quantities of information during its research. The Freedom of Information Act (FOIA), passed by Congress in 1988, served to provide public access to considerable amounts of government information. No comparable measure provides access to government facilities, such as prisons.
In regard to prison access, the national media watchdog group Fairness and Accuracy in Reporting (FAIR) focused in part on press censorship issues. FAIR identified three states in 1996 attempting to substantially restrict access ofjournalists to state prisons. Illinois banned one-to-one interviews with death row inmates. Virginia barred prison tours, photographs, and face-to-face inmate interviews. In addition to an interview ban, California sought to eliminate confidential mail privileges between inmates and members of the media. FAIR asserted that such actions not only gags the mouths of inmates--contraryto their First Amendment rights--but violates the news media's and public's constitutional rights of access as well.
The dispute over media access to government information increased through the1990s as competition among the media grew. The rise in popularity of sensationalist television tabloid shows also contributed to the push for greater access. There remains no clear principle for courts to apply in determining theappropriateness of access in specific cases. Legal scholars suggested severalkey principles to safeguard press access rights to government information. The principles involved protecting the news media from: (1) preferential treatment; (2) denial of access where traditionally allowed; and (3) access policythat seems to arbitrarily change without sufficient reason. Some contend that balancing, on a case-by-case basis, the right of press access against government interest in confidentiality, places the Court in undesirable situationsas the Houchins case demonstrated.
Related Cases
- Grosjean v. American Press Co., 297 U.S. 233 (1936).
- New York Times Company v. United States, 403 U.S. 713 (1971).
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Pell v. Procunier, 417 U.S. 817 (1974).
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).
- Cohen v. Cowles Media Co., 501 U.S. 663 (1991).
Talk Radio in the United States
Today, the right to a free and unfettered press includes other print media, as well as broadcasts over radio and television, in movies, and through electronic information. Broadcast media may have more governmental control than theprint media, but it still enjoys tremendous latitude in the discretion and choice of programming.
Radio talk show commentators and listeners calling the shows have the opportunity to discuss their opinions on various subjects. Shows offer discussion ofcurrent political issues, sports, psychology, and other topics of interest to the public. The ability to verbalize an opinion or subject that is controversial goes to the heart of citizens' First Amendment rights to free press andspeech.
Talk shows serving as a forum for political discussion allowing for varying points of view, without government censorship, are another means of sustaininga vigorous exchange of information. This was the original intent of the Constitution's prohibition against government interference with the press. The framers of the Constitution supported the expression of conflicting points of view, even if in opposition to governmental policies. They viewed this as a critical element in a democracy.
Sources
First Amendment Center--Press, http://www.fac.org/press/press97.htm. GrolierElectronic Publishing, Inc., 1995.
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