Kqed, Inc. v. Thomas L. Houchins, Individually and in His Official Capacity as Sheriff of Alameda County

546 F.2d 284
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 22, 1976
Docket75-3643
StatusPublished
Cited by6 cases

This text of 546 F.2d 284 (Kqed, Inc. v. Thomas L. Houchins, Individually and in His Official Capacity as Sheriff of Alameda County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kqed, Inc. v. Thomas L. Houchins, Individually and in His Official Capacity as Sheriff of Alameda County, 546 F.2d 284 (9th Cir. 1976).

Opinions

PREGERSON, District Judge:

This is an appeal from the trial court’s issuance of a preliminary injunction restraining appellant, the Sheriff of Alameda County, California, from depriving appellees of their First and Fourteenth Amendment rights by “excluding as a matter of general policy . . . responsible representatives of the news media from the Alameda County Jail facilities at Santa Rita, including the Greystone portion thereof. . . .1 To allow “full and accurate coverage” of jail conditions, the preliminary injunction requires that the reporters be given access to Santa Rita “at reasonable times and hours,” and that they be allowed to use photographic and sound equipment and to interview inmates. The specific method of implementing media access was left to the Sheriff’s determination, and the Sheriff was given discretion to exclude the media when jail tensions made such access dangerous. The question presented on appeal is whether the terms of this preliminary injunction, entered after a full evidentiary hearing, constitute an abuse of the trial court’s discretion.

[I] Clearly, the First Amendment grants the news media a constitutionally protected right to gather news. See Branzburg v. Hayes, 408 U.S. 665, 681-707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), Pell v. Procunier, 417 U.S. 817, 833, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). This right is indispensable in preserving the news media as a major source of information for the public, particularly when the information sought concerns governmental institutions, including prisons. See Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). The conditions of our nation’s prisons “are a matter that is both newsworthy and of great public importance.” Pell v. Procunier, 417 U.S. at 830, n.7, 94 S.Ct. at 2808.

The parties, however, dispute whether the scope of this news-gathering right encompasses the kind of access to Santa Rita Jail granted the news media by the preliminary injunction. Appellant relies on the Supreme Court’s observation that “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.”2 Pell v. Procunier, supra, 417 U.S. at 834, 94 S.Ct. at 2810. On the basis of this statement, appellant argues that this preliminary injunction is an abuse of discretion because it permits reporters to view Santa Rita Jail and communicate with its inmates in ways denied the public during scheduled monthly tours of the facility.

The above-quoted language from Pell v. Procunier simply states that the news media’s constitutional right of access to prisons or their inmates is co-extensive [286]*286with the public’s right. Implicit in the trial court’s memorandum granting the preliminary injunctions is the finding that the First Amendment rights of both the public and the news media were infringed by appellant’s restrictive policy. Although the memorandum does not explicitly mention the public’s rights, the trial court applied the proper test to determine whether these rights were infringed: a governmental restriction on First Amendment rights can be upheld only if the restriction furthers an important or substantial governmental interest unrelated to suppressing speech and the restriction is the least drastic means of furthering that governmental interest. See United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The preliminary injunction, while protecting First Amendment rights, also satisfies the governmental interests in security of the jail and privacy of inmates. The Sheriff can exclude media access when jail security is threatened, make reasonable time, place, and manner restrictions, and develop appropriate administrative regulations that require searches of reporters, identification of press representatives, and consent from inmates for interviews and photographs.

Having determined that appellant’s restrictive policy was an infringement of constitutional rights, the court did not err by issuing an injunction that, on its face, grants greater prison access to the news media than the access accorded the public on monthly guided tours of the facility. Pell v. Procunier does not stand for the proposition that the correlative constitutional rights of the public and the news media to visit a prison must be implemented identically. The access needs of the news media and the public differ. Media access, on reasonable notice, may be desirable in the wake of a newsworthy event, while the interest of the public in observing jail conditions may be satisfied by formal, scheduled tours. Moreover, the administrative problems inherent in public and media access differ. A large public tour group creates a greater security threat and requires the use of more jail personnel to supervise the tour, while a single reporter, known to jail officials, should cause minimal, if any, interference to jail routine. Although both groups have an equal constitutional right of access to jails, because of differing needs and administrative problems, common sense mandates that the implementation of those correlative rights not be identical.

In the circumstances of this case, we cannot say that the trial court’s issuance of the preliminary injunction was an abuse of discretion. Its order granting the preliminary injunction is therefore affirmed.

To determine the questions of infringement of the correlative rights of the public and the media and the means by which these rights are to be implemented, the trial court should consider the kind of access accorded the news media and the public in the California state prison system, as discussed in Peli v. Procunier, and the access accorded by the federal prison system as set forth in Policy Statement No. 1220.1B, a copy of which is attached as Appendix A.

APPENDIX A

FEDERAL PRISON SYSTEM WASHINGTON, D. C. 20534

POLICY STATEMENT NUMBER 1220.1B

SUBJECT: CONTACTS WITH NEWS MEDIA DATE

7/1/76

1. PURPOSE. To establish, for a trial period of July 1 — December 31, 1976, the policy of the Bureau of Prisons with respect to the news media.

2. POLICY. The Bureau of Prisons recognizes the desirability of establishing a policy that affords the public greater access to news about its operations. The policy is not [287]*287designed to provide publicity for inmates or special privileges for the news media, but rather to insure a better informed public. The correspondence and interviews, in a prison setting, must be regulated to insure the orderly and safe operation of the institution.

3. DIRECTIVE AFFECTED. Policy Statements 1220.1A and 1220.6/7300.96 are superseded by this Policy Statement.

4. PROCEDURE,

a. Application.

(1) For the purposes of this policy statement representatives of news media shall be defined as the following:

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Related

Houchins v. KQED, Inc.
438 U.S. 1 (Supreme Court, 1978)
Ottaway Newspapers, Inc. v. Appeals Court
362 N.E.2d 1189 (Massachusetts Supreme Judicial Court, 1977)

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Bluebook (online)
546 F.2d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kqed-inc-v-thomas-l-houchins-individually-and-in-his-official-capacity-ca9-1976.