Houchins v. KQED, Inc.

438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553, 1978 U.S. LEXIS 11, 3 Media L. Rep. (BNA) 2521

• Court: Supreme Court of the United States
• Decided: June 26, 1978
• Docket: 76-1310
• Status: Published

Opinions

Mr. Chief Justice Burger

announced the judgment of the Court and delivered an opinion, in which Mr. Justice White and Mr. Justice Rehnquist joined.

The question presented is whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television.

I

Petitioner Houchins, as Sheriff of Alameda County, Cal., controls all access to the Alameda County Jail at Santa Rita. Respondent KQED operates licensed television and radio broadcasting stations which have frequently reported newsworthy events relating to penal institutions in the San Francisco Bay Area. On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. The report included a statement by a psychiatrist that the conditions at the Greystone facility were responsible for the illnesses of his patient-prisoners there, and a statement from petitioner denying that prison conditions were responsible for the prisoners' illnesses.

KQED requested permission to inspect and take pictures within the Greystone facility. After permission was refused, KQED and the Alameda and Oakland branches of the National Association for the Advancement of Colored People (NAACP) filed suit under 42 U. S. C. § 1983. They alleged that petitioner had violated the First Amendment by refusing to permit media access and failing to provide any effective means by which the public could be informed of conditions prevailing in the Greystone facility or learn of the prisoners’ grievances. Public access to such information was essential, they asserted, in order for NAACP members to participate in the public debate on jail conditions in Alameda County. They further asserted that television coverage of the conditions in the cells and facilities was the most effective way of informing the public of prison conditions.

.The complaint requested a preliminary and permanent injunction to prevent petitioner from “excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally preventing full and accurate news coverage of the conditions prevailing therein.” On June 17,1975, when the complaint was filed, there appears to have been no formal policy regarding public access to the Santa Rita jail. However, according to petitioner, he had been in the process of planning a program of regular monthly tours since he took office six months earlier. On July 8, 1975, he announced the program and invited all interested persons to make arrangements for the regular public tours. News media were given notice in advance of the public and presumably could have made early reservations.

Six monthly tours were planned and funded by the county at an estimated cost of $1,800. The first six scheduled tours were filled within a week after the July 8 announcement.¹ A KQED reporter and several other reporters were on the first tour on July 14, 1975.

Each tour was limited to 25 persons and permitted only limited access to the jail. The tours did not include the disciplinary cells or the portions of the jail known as “Little Greystone,” the scene of alleged rapes, beatings, and adverse physical conditions. Photographs of some parts of the jail were made available, but no cameras or tape recorders were allowed on the tours. Those on the tours were not permitted to interview inmates, and inmates were generally removed from view.

In support of the request for a preliminary injunction, respondents presented testimony and affidavits stating that other penal complexes had permitted media interviews of inmates and substantial media access without experiencing significant security or administrative problems. They contended that the monthly public tours at Santa Rita failed to provide adequate access to the jail for two reasons: (a) once the scheduled tours had been filled, media representatives who had not signed up for them had no access and were unable to cover newsworthy events at the jail; (b) the prohibition on photography and tape recordings, the exclusion of portions of the jail from the tours, and the practice of keeping inmates generally removed from view substantially reduced the usefulness of the tours to the media.

In response, petitioner admitted that Santa Rita had never experimented with permitting media access beyond that already allowed; he did not claim that disruption had been caused by media access to other institutions. He asserted, however, that unregulated access by the media would infringe inmate privacy,² and tend to create “jail celebrities,” who in turn tend to generate internal problems and undermine jail security. He also contended that unscheduled media tours would disrupt jail operations.

Petitioner filed an affidavit noting the various means by which information concerning the jail could reach the public. Attached to the affidavit were the current prison mail, visitation, and phone call regulations. The regulations allowed inmates to send an unlimited number of letters to judges, attorneys, elected officials, the Attorney General, petitioner, jail officials, or probation officers, all of which could be sealed prior to mailing. Other letters were subject to inspection for contraband but the regulations provided that no inmate mail would be read.

With few exceptions,³ all persons, including representatives of the media, who knew a prisoner could visit him. Media reporters could interview inmates awaiting trial with the consent of the inmate, his attorney, the district attorney, and the court. Social services officers were permitted to contact “rela* tives, community agencies, employers, etc.,” by phone to assist in counseling inmates with vocational, educational, or personal problems. Maximum-security inmates were free to make unmonitored collect telephone calls from designated areas .of the jail without limit.

After considering the testimony, affidavits, and documentary evidence presented by the parties, the District. Court preliminarily enjoined petitioner from denying KQED news personnel and “responsible representatives” of the news media access to the Santa Rita facilities, including Greystone, “at reasonable times and hours” and “from preventing KQED news personnel and responsible representatives of the news media from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities.”

The District Court rejected petitioner’s contention that the media policy then in effect was necessary to protect inmate privacy or minimize security and administrative problems. It found that the testimony of officials involved with other jails indicated that a “more flexible press policy at Santa Rita [was] both desirable and attainable.” The District Court concluded that the respondents had “demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on the merits, a favorable public interest, and a balance of hardships” in their favor.

On interlocutory appeal from the District Court’s order, petitioner invoked Pell v. Procunier, 417 U. S. 817, 834 (1974), where this Court held that “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” He contended that the District Court had departed from Pell and abused its discretion because it had ordered that he give the media greater access to the jail than he gave to the general public. The Court of Appeals rejected petitioner’s argument that Pell and Saxbe v. Washington Post Co., 417 U. S. 843 (1974), were controlling. It concluded, albeit in three separate opinions,⁴ that the public and the media had a First and Fourteenth Amendment right of access to prisons and jails, and sustained the District Court’s order.

II

Notwithstanding our holding in Pell v. Procunier, supra, respondents assert that the right recognized by the Court of Appeals flows logically from our decisions construing the First Amendment. They argue that there is a constitutionally guaranteed right to gather news under Pell v. Procunier, supra, at 835, and Branzburg v. Hayes, 408 U. S. 665, 681, 707 (1972). From the right to gather news and the right to receive information, they argue for an implied special right of access to government-controlled sources of information. This right, they contend, compels access as a constitutional matter. Respondents suggest further support for this implicit First Amendment right in the language of Grosjean v. American Press Co., 297 U. S. 233, 250 (1936), and Mills v. Alabama, 384 U. S. 214, 219 (1966), which notes the importance of an informed public as a safeguard against “misgovernment” and the crucial role of the media in providing information. Respondents contend that public access to penal institutions is necessary to prevent officials from concealing prison conditions from the voters and impairing the public’s right to discuss and criticize the prison system and its administration.

Ill

We can agree with many of the respondents’ generalized assertions; conditions in jails and prisons are clearly matters “of great public importance.” Pell v. Procunier, supra, at 830 n. 7. Penal facilities are public institutions which require large amounts of public funds, and their mission is crucial in our criminal justice system. Each person placed in prison becomes, in effect, a ward of the state for whom society assumes broad responsibility. It is equally true that with greater information, the public can more intelligently form opinions about prison conditions. Beyond question, the role of the media is important; acting as the “eyes and ears” of the public, they can be a powerful and constructive force, contributing to remedial action in the conduct of public business. They have served that function since the beginning of the Republic, but like all other components of our society media representatives are subject to limits.

The media are not a substitute for or an adjunct of government and, like the courts, they are “ill equipped” to deal with problems of prison administration. Cf. Procunier v. Martinez, 416 U. S. 396, 405 (19-74). We must-not confuse the role of the media with that of government; each has special, crucial functions, each complementing- — -and sometimes conflicting with — the other.

The public importance of conditions in penal facilities and the media’s role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter these institutions, with camera equipment, and take moving and still pictures of inmates for broadcast purposes. This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control. Nor does the rationale of the decisions upon which respondents rely lead to the implication of such a right.

Grosjean v. American Press Co., supra, and Mills v. Alabama, supra, emphasized the importance of informed public opinion and the traditional role of a free press as¹ a source of public information., But an analysis of those cases reveals that the Court was concerned with the freedom of the media to communicate information once it is obtained; neither case intimated that the Constitution compels the government to provide the media with information or access to it on demand. Grosjean involved a challenge to a state tax on advertising revenues of newspapers, the “plain purpose” of which was to penalize the publishers and curtail the publication of a selected group of newspapers. 297 U. S., at 251. The Court summarized the familiar but important history of the attempts to prevent criticism of the Crown in England by the infamous licensing requirements and special taxes on the press, id., at 245-247, and concluded that the First Amendment had been designed to prevent similar restrictions or any other “form of previous restraint upon printed publications, or their circulation.” Id., at 249.⁵

In discussing the importance of an “untrammeled press,” the Court in Orosjean readily acknowledged the need for “informed public opinion” as a restraint upon misgovernment. 297 U. S., at 250. It also criticized the tax at issue because it limited “the circulation of information to which the public [was] entitled.” Ibid. But nothing in the Court’s holding implied a special privilege of access to information as distinguished from a right to publish information which has been obtained; Gres jean dealt only with government attempts to burden and restrain a newspaper’s communication with the public. The reference to a public entitlement to information meant no more than that the government cannot restrain communication of whatever information the media acquire— and which they elect to reveal. Cf. Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 838 (1978).

Mills involved a statute making it a crime to publish an editorial about election issues on election day. In striking down the statute, the Court noted that “a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,” 384 U. S., at 218. The Court also discussed the role of the media “as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.” Id., at 219. As in Grosjean, however, the Court did not remotely imply a constitutional right guaranteeing anyone access to government information beyond that open to the public generally.

Branzburg v. Hayes, supra, offers even less support for the respondents’ position. Its observation, in dictum, that “news gathering is not without its First Amendment protections,” 408 U. S., at 707, in no sense implied a constitutional right of access to news sources. That observation must be read in context; it was in response to the contention that forcing a reporter to disclose to a grand jury information received in confidence would violate the First Amendment by deterring news sources from communicating information. Id., at 680. There is an undoubted right to gather news “from any source by means within the law,” id., at 681-682, but that affords no basis for the claim that the First Amendment compels others — private persons or governments — to supply information.

That the Court assumed in Branzburg that there is no First Amendment right of access to information is manifest from its statements that

“the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally,” id., at 684,

and that

“[njewsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded,” id., at 684-685.

Pell v. Procunier and Saxbe v. Washington Post Co. also assumed that there is no constitutional right of access such as the Court of Appeals conceived. In those cases the Court declared, explicitly and without reservation, that the media have “no constitutional right of access to prisons or their inmates beyond that afforded the general public,” Pell, 417 U. S., at 834; Saxbe, 417 U. S., at 850, and on that premise the Court sustained prison regulations that prevented media interviews with inmates.

The fact that the Court relied upon Zemel v. Rusk, 381 U. S. 1 (1965), in both Branzburg, 408 U. S., at 684 n. 22, and Pell, supra, at 834 n. 9, further negates any notion that the First Amendment confers a right of access to news sources. The appellant in Zemel made essentially the same argument that respondents advance here. He contended that the ban on travel to Cuba, then in effect, interfered with his First Amendment right to acquaint himself with the effects of our Government’s foreign and domestic policies and the conditions in Cuba that might affect those policies. Mr. Chief Justice Warren, writing for the Court, flatly rejected the contention that there was a First Amendment right at stake, stating:

“[Tjhere are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.” 381 U. S., at 16-17. (Emphasis added.)

The right to receive ideas and information is not the issue in this case. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976); Procunier v. Martinez, 416 U. S., at 408-409; Kleindienst v. Mandel, 408 U. S. 753, 762-763 (1972). The issue is a claimed special privilege of access which the Court rejected in Pell and Saxbe, a right which is not essential to guarantee the freedom to communicate or publish.

IV

The respondents’ argument is flawed, not only because it lacks precedential support and is contrary to statements in this Court’s opinions, but also because it invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes. Whether the government should open penal institutions in the manner sought by respondents is a question of policy which a legislative body might appropriately resolve one way or the other.

A number of alternatives are available to prevent problems in penal facilities from escaping public attention. The early penal reform movements in this country and England gained impetus as a result of reports from citizens and visiting committees who volunteered or received commissions to visit penal institutions and make reports. See T. Eriksson, The Reformers 32-42, 69 (Djurklou translation 1976); W. Crawford, Report on the Penitentiaries of the United States vii-viii, xiii-xv, 10-11, App. 9 (1969 ed.); B. McKelvey, American Prisons 52-56, 193 (1936). Citizen task forces and prison visitation committees continue to play an important role in keeping the public informed on deficiencies of prison systems and need for reforms.⁶ Grand juries, with the potent subpoena power — not available to the media — traditionally concern themselves with conditions in public institutions; a prosecutor or judge may initiate similar inquiries, and the legislative power embraces an arsenal of weapons for inquiry relating to tax-supported institutions. In each case, these public bodies are generally compelled to publish their findings and, if they default, the power of the media is always available to generate public pressure. for disclosure. But the choice as to the most effective and appropriate method is a policy decision to be resolved by legislative decision.⁷ We must not confuse what is “good,” “desirable,” or “expedient” with what is constitutionally commanded by the First Amendment. To do so is to trivialize constitutional adjudication.

Unarticulated but implicit in the assertion that media access to the jail is essential for informed public debate on jail conditions is the assumption that media personnel are the best qualified persons for the task of discovering malfeasance in public institutions. But that assumption finds no support in the decisions of this Court or the First Amendment. Editors and newsmen who inspect a jail may decide to publish or not to 'publish what information they acquire. Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 124 (1973); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Note, The Rights of the Public and the Press To Gather Information, 87 Harv. L. Rev. 1505, 1508, 1513 (1974). Public bodies and public officers, on the other hand, may be coerced by public opinion to disclose what they might prefer to conceal. No comparable pressures are available to anyone to compel publication by the media of what they might prefer not to make known.

There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals’ approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems “desirable” or “expedient.” We, therefore, reject the Court of Appeals’ conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals, and mental institutions.

“There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. [Citing Pell v. Procunier, supra.] The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.

“The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.” Stewart, “Or of the Press,” 26 Hastings L. J. 631, 636 (1975).

Petitioner cannot prevent respondents from learning about jail conditions in a variety of ways, albeit not as conveniently as they might prefer. Respondents have a First Amendment right to receive letters from inmates criticizing jail officials and reporting on conditions. See Procunier v. Martinez, 416 U. S., at 413-418. Respondents are free to interview those who render the legal assistance to which inmates are entitled. See id., at 419. They are also free to seek out former inmates, visitors to the prison, public officials, and institutional personnel, as they sought out the complaining psychiatrist here.

Moreover, California statutes currently provide for a prison Board of Corrections that has the authority to inspect jails and prisons and must provide a public report at regular intervals. Cal. Penal Code Ann. §§ 6031-6031.2 (West Supp. 1978). Health inspectors are required to inspect prisons and ’provide reports to a number of officials, including the State Attorney General and the Board of Corrections. Cal. Health & Safety Code Ann. § 459 (West 1970). Fire officials are also required to inspect prisons. 15 Cal. Admin. Code § 1025 (1976). Following the reports of the suicide at the jail involved here, the County Board of Supervisors called for a report from the County Administrator; held a public hearing on the report, which was open to the media; and called for further reports when the initial report failed to describe the conditions in the cells in the Greystone portion of the jail.

Neither the First Amendment nor the Fourteénth Amendment mandates a right of access to government information or sources of information within the government’s control. Under our holdings in Pell v. Procunier, supra, and Saxbe v. Washington Post Co., supra, until the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

Mr. Justice Marshall and Mr. Justice Blackmun took no part in the consideration or decision of this case.

1 According to petitioner, the initial public interest in the tours has now subsided and there is no longer a waiting list.

2 It is true that inmates lose many rights when they are lawfully confined, but they do not lose all civil rights. See, e. g., Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974), and eases cited therein. Inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy; they are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however “educational” the process may be for others.

3 Persons who were on parole or had been released from a state prison could not visit without the approval of the commanding officer. Persons released from the Santa Rita or the courthouse jail within a certain period of time were also required to obtain approval to visit from the commanding officer.

4 See 546 F. 2d 284 (CA9 1976).

5 The Court relied upon Near v. Minnesota ex rel. Olson, 283 U. S. 697, 713-716 (1931). More recently in Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971), these concepts were reaffirmed. See also Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974).

6 See, e. g., Behind the Bars, ABA Report of Young Lawyers Section on Prison Visitation Program 1970-1975; Case, Citizen Participation: An Experiment in Prison-Community Relations, 30 Federal Probation 18, 19-21 (Dee. 1966); Final Report of the Ohio Citizens' Task Force on Corrections A28 (1971); Report of the Illinois Subcommittee on Penal Institutions of the Legislative Comm’n To Visit and Examine State Institutions (1969); Massachusetts, Governor’s Task Force on Correctional Industries, Final Report (Sept. 1970); California Correctional System Study, Final Report, California Board of Corrections (July 1971).

7 The Freedom of Information Act, 5 U. S. C. §552 (1976 ed.), for example, is the result of legislative decisions.

1 See Brenneman v. Madigan, 343 F. Supp. 128, 132-133 (ND Cal. 1972). Based on a, personal visit to the facility, Judge Zirpoli reached the “inescapable conclusion . . . that Greystone should be razed to the ground.”