Houchins v. KQED

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 Amendment prohibits 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 growth of the federal government during the 1930s and 1940s, the press assumed an even greater role after World War II in maintaining vigilance over government activities.

Demands for access to government information correspondingly increased beyond that 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 national prominence in 1971 over controversy related to publication of the Pentagon Papers by the New York Times and Washington Post. The 7,000 pages of 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 gather news 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 could not 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 and secrecy. Without access restrictions, the United States would not be able to maintain 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 a subject for Congress to define. As established in Grosjean v. American Press Co. (1936), the focus of the Press Clause is the right to communicate information 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.