After respondent broadcasting company, KQED, had been refused
permission to inspect and take photographs at a portion (Little
Greystone) of a county jail where a prisoner's suicide reportedly
had occurred and where conditions were assertedly responsible for
prisoners' problems, respondents brought this action under 42
U.S.C. § 1983 against petitioner, who supervised the jail, claiming
deprivation of their First Amendment rights. Thereafter petitioner
announced a program of regular monthly tours open to the public,
including media reporters, of parts of the jail (but not including
Little Greystone). Cameras or tape recorders were not allowed on
the tours, nor were interviews with inmates. Persons, including
members of the media, who knew a prisoner at the jail could visit
him. The District Court preliminarily enjoined petitioner from
denying KQED news personnel and responsible news media
representatives reasonable access to the jail, including Little
Greystone, and from preventing their using photographic or sound
equipment or from conducting inmate interviews. The Court of
Appeals affirmed.
Held: The judgment is reversed and the case is
remanded. Pp.
438 U. S. 8-16;
438 U. S.
16-19.
546 F.2d 284, reversed and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE WHITE and MR. JUSTICE
REHNQUIST, concluded that neither the First Amendment nor the
Fourteenth Amendment provides a right of access to government
information
Page 438 U. S. 2
or sources of information within the government's control. The
news media have no constitutional right of access to the 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.
Pell v.
Procunier, 417 U. S. 817;
Saxbe v. Washington Post 417 U. S. 843. Pp.
438 U. S.
8-16.
(a) 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 those institutions, gather information, and take pictures for
broadcast purposes. The First Amendment does not guarantee a right
of access to sources of information within government control.
Grosjean v. American Press, 297 U.
S. 233,
Mills v. Alabama, 384 U.
S. 214, and other cases relied upon by respondents,
concerned the freedom of the press to communicate information
already obtained, but neither
Grosjean nor
Mills
indicated that the Constitution compels the government to provide
the press with information. Pp.
438 U. S.
8-12.
(b) Whether the government should open penal institutions in the
manner sought by respondents is a matter for legislative, not
judicial, resolution. Pp.
438 U. S.
12-16.
MR. JUSTICE STEWART, while agreeing that the Constitution does
no more than assure the public and the press equal access to
information generated or controlled by the government once the
government has opened its doors, concluded that terms of access
that are reasonably imposed on individual members of the public may
-- if they impede effective reporting without sufficient
justification -- be unreasonable as applied to journalists who are
at a jail to convey to the general public what the visitors see.
KQED was thus clearly entitled to some preliminary relief from the
District Court, but not to an order requiring petitioner to permit
reporters into the Little Greystone facility and requiring him to
let them interview randomly encountered inmates. In those respects,
the injunction gave the press access to areas and sources of
information from which persons on the public tours had been
excluded, thus enlarging the scope of what had been opened to
public view. Pp.
438 U. S.
16-19.
BURGER, C.J., announced the Court's judgment and delivered an
opinion, in which WHITE and REHNQUIST, JJ., joined. STEWART, J.,
filed an opinion concurring in the judgment,
post, p.
438 U. S. 16.
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
POWELL, JJ., joined,
post, p.
438 U. S. 19.
MARSHALL, and BLACKMUN, JJ., took no part in the consideration or
decision of the case.
Page 438 U. S. 3
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
Page 438 U. S. 4
(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. [
Footnote 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
Page 438 U. S. 5
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,
[
Footnote 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.
Page 438 U. S. 6
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, [
Footnote
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 "relatives, 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. "
Page 438 U. S. 7
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,
417 U. S. 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, [
Footnote 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
417 U. S. 835,
and
Branzburg v. Hayes, 408 U. S. 665,
408 U. S. 681,
408 U. S. 707
(1972). From the right to gather news and the right to receive
information, they argue for an implied special right of access
to
Page 438 U. S. 8
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,
297 U. S. 250
(1936), and
Mills v. Alabama, 384 U.
S. 214,
384 U. S. 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.
III
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
417 U. S. 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,
416 U. S. 405
(1974). We must not confuse the role of the media with that of
government; each has special, crucial
Page 438 U. S. 9
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 as 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
297 U. S. 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
297 U. S.
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
297 U. S. 249.
[
Footnote 5]
Page 438 U. S. 10
In discussing the importance of an "untrammeled press," the
Court in
Grosjean readily acknowledged the need for
"informed public opinion" as a restraint upon misgovernment. 297
U.S. at
297 U. S. 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;
Grosjean
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,
435 U. S. 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
384 U. S. 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
384 U. S. 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
408 U. S. 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
Page 438 U. S. 11
confidence would violate the First Amendment by deterring news
sources from communicating information.
Id. at
408 U. S. 680.
There is an undoubted right to gather news "from any source by
means within the law,"
id. at
408 U. S.
681-682, but that affords no basis for the claim that
the First Amendment compels others -- private persons or government
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
408 U. S. 684,
and that
"[n]ewsmen have no constitutional right of access to the scenes
of crime or disaster when the general public is excluded,"
id. at
408 U. S.
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
417 U. S. 834;
Saxbe, 417 U.S. at
417 U. S. 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
408 U. S. 684
n. 22, and
Pell, supra at
417 U. S. 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
Page 438 U. S. 12
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:
"[T]here 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
381 U. S. 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
416 U. S.
408-409;
Kleindienst v. Mandel, 408 U.
S. 753,
408 U. S.
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
Page 438 U. S. 13
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, 111, 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.
[
Footnote 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. [
Footnote 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
Page 438 U. S. 14
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,
412 U. S. 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,
Page 438 U. S. 15
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
416 U. S.
413-418. Respondents are free to interview those who
render the legal assistance to which inmates are entitled.
See
id. at
416 U. S. 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 Fourteenth 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
Page 438 U. S. 16
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.
[
Footnote 1]
According to petitioner, the initial public interest in the
tours has now subsided, and there is no longer a waiting list.
[
Footnote 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,
418 U. S.
555-556 (1974), and cases 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.
[
Footnote 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.
[
Footnote 4]
See 546 F.2d 284 (CA9 1976).
[
Footnote 5]
The Court relied upon
Near v. Minnesota ex rel. Olson,
283 U. S. 697,
283 U. S.
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).
[
Footnote 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 (Dec.1966); Final Report of the Ohio
Citizens' Task Force on Corrections A28 (1071); 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).
[
Footnote 7]
The Freedom of Information Act, 5 U.S.C. § 552 (1976 ed.), for
example, is the result of legislative decisions.
MR. JUSTICE STEWART, concurring in the judgment.
I agree that the preliminary injunction issued against the
petitioner was unwarranted, and therefore concur in the judgment.
In my view, however, KQED was entitled to injunctive relief of more
limited scope.
The First and Fourteenth Amendments do not guarantee the public
a right of access to information generated or controlled by
government, nor do they guarantee the press any basic right of
access superior to that of the public generally. The Constitution
does no more than assure the public and the press equal access once
government has opened its doors.
* Accordingly, I
agree substantially with what the opinion of THE CHIEF JUSTICE has
to say on that score.
We part company, however, in applying these abstractions to the
facts of this case. Whereas he appears to view "equal access" as
meaning access that is identical in all respects, I believe that
the concept of equal access must be accorded more flexibility in
order to accommodate the practical distinctions between the press
and the general public.
Page 438 U. S. 17
When on assignment, a journalist does not tour a jail simply for
his own edification. He is there to gather information to be passed
on to others, and his mission is protected by the Constitution for
very specific reasons. "Enlightened choice by an informed citizenry
is the basic ideal upon which an open society is premised. . . ."
Branzburg v. Hayes, 408 U. S. 665,
408 U. S. 726
(dissenting opinion). Our society depends heavily on the press for
that enlightenment. Though not without its lapses, the press
"has been a mighty catalyst in awakening public interest in
governmental affairs, exposing corruption among public officers and
employees and generally informing the citizenry of public events
and occurrences. . . ."
Estes v. Texas, 381 U. S. 532,
381 U. S. 539.
See Mills v. Alabama, 384 U. S. 214,
384 U. S. 219;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S.
250.
That the First Amendment speaks separately of freedom of speech
and freedom of the press is no constitutional accident, but an
acknowledgment of the critical role played by the press in American
society. The Constitution requires sensitivity to that role, and to
the special needs of the press in performing it effectively. A
person touring Santa Rita jail can grasp its reality with his own
eyes and ears. But if a television reporter is to convey the jail's
sights and sounds to those who cannot personally visit the place,
he must use cameras and sound equipment. In short, terms of access
that are reasonably imposed on individual members of the public
may, if they impede effective reporting without sufficient
justification, be unreasonable as applied to journalists who are
there to convey to the general public what the visitors see.
Under these principles, KQED was clearly entitled to some form
of preliminary injunctive relief. At the time of the District
Court's decision, members of the public were permitted to visit
most parts of the Santa Rita jail, and the First and Fourteenth
Amendments required the Sheriff to give members of the press
effective access to the same areas. The Sheriff evidently assumed
that he could fulfill this obligation simply
Page 438 U. S. 18
by allowing.reporters to sign up for tours on the same terms as
the public. I think he was mistaken in this assumption, as a matter
of constitutional law.
The District Court found that the press required access to the
jail on a more flexible and frequent basis than scheduled monthly
tours if it was to keep the public informed. By leaving the
"specific methods of implementing such a policy . . . [to] Sheriff
Houchins," the court concluded that the press could be allowed
access to the jail "at reasonable times and hours" without causing
undue disruption. The District Court also found that the media
required cameras and recording equipment for effective presentation
to the viewing public of the conditions at the jail seen by
individual visitors, and that their use could be kept consistent
with institutional needs. These elements of the court's order were
both sanctioned by the Constitution and amply supported by the
record.
In two respects, however, the District Court's preliminary
injunction was overbroad. It ordered the Sheriff to permit
reporters into the Little Greystone facility and it required him to
let them interview randomly encountered inmates. In both these
respects, the injunction gave the press access to areas and sources
of information from which persons on the public tours had been
excluded, and thus enlarged the scope of what the Sheriff and
Supervisors had opened to public view. The District Court erred in
concluding that the First and Fourteenth Amendments compelled this
broader access for the press.
Because the preliminary injunction exceeded the requirements of
the Constitution in these respects, I agree that the judgment of
the Court of Appeals affirming the District Court's order must be
reversed. But I would not foreclose the possibility of further
relief for KQED on remand. In my view, the availability and scope
of future permanent injunctive relief must depend upon the extent
of access then permitted the public, and the decree must be framed
to accommodate
Page 438 U. S. 19
equitably the constitutional role of the press and the
institutional requirements of the jail.
* Forces and factors other than the Constitution must determine
what government-held data are to be made available to the public.
See, e.g., New York Times Co. v. United States,
403 U. S. 713,
403 U. S.
728-730 (concurring opinion).
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE POWELL join, dissenting.
The Court holds that the scope of press access to the Santa Rita
jail required by the preliminary injunction issued against
petitioner is inconsistent with the holding in
Pell v.
Procunier, 417 U. S. 817,
417 U. S. 834,
that "newsmen have no constitutional right of access to prisons or
their inmates beyond that afforded the general public," and
therefore the injunction was an abuse of the District Court's
discretion. I respectfully disagree.
Respondent KQED, Inc., has televised a number of programs about
prison conditions and prison inmates, and its reporters have been
granted access to various correctional facilities in the San
Francisco Bay area, including San Quentin State Prison, Soledad
Prison, and the San Francisco County Jails at San Bruno and San
Francisco, to prepare program material. They have taken their
cameras and recording equipment inside the walls of those
institutions and interviewed inmates. No disturbances or other
problems have occurred on those occasions.
KQED has also reported newsworthy events involving the Alameda
County Jail in Santa Rita, including a 1972 newscast reporting a
decision of the United States District Court finding that the
"shocking and debasing conditions which prevailed [at Santa
Rita] constituted cruel and unusual punishment for man or beast as
a matter of law. [
Footnote
2/1]"
On March 31, 1975, KQED reported the suicide of a prisoner in
the Greystone portion of the Santa Rita jail. That program also
carried a statement by a psychiatrist assigned to Santa Rita to the
effect that conditions
Page 438 U. S. 20
in the Greystone facility were responsible for illnesses of
inmates. [
Footnote 2/2]
Petitioner's disagreement with that conclusion was reported on the
same newscast.
KQED requested permission to visit and photograph the area of
the jail where the suicide occurred. Petitioner refused, advising
KQED that it was his policy not to permit any access to the jail by
the news media. This policy was also invoked by petitioner to deny
subsequent requests for access to the jail in order to cover news
stories about conditions and alleged incidents within the facility.
[
Footnote 2/3] Except for a
carefully supervised tour in 1972, the news media were completely
excluded from the inner portions of the Santa Rita jail until after
this action was commenced. [
Footnote
2/4] Moreover, the prison rules provided that all outgoing
mail, except letters to judges and lawyers, would be inspected; the
rules also prohibited any mention in outgoing correspondence of the
names or actions of any correctional officers.
Respondents KQED, and the Alameda and Oakland branches of the
National Association for the Advancement of Colored People,
[
Footnote 2/5] filed their
complaint for equitable relief on June 17,
Page 438 U. S. 21
1975. The complaint alleged that petitioner had provided no
"means by which the public may be informed of conditions prevailing
in Greystone or by which prisoners' grievances may reach the
public." It further alleged that petitioner's policy of "denying
KQED and the public" access to the jail facility violated the First
and Fourteenth Amendments to the Constitution, and requested the
court to enjoin 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."
App. 7. With the complaint, respondents filed a motion for a
preliminary injunction, supported by affidavits of representatives
of the news media, the Sheriff of San Francisco County, and the
attorney for respondents. The affidavits of the news media
representatives and the Sheriff described the news coverage in
other penal institutions and uniformly expressed the opinion that
such coverage had no harmful consequences and in fact served a
significant public purpose. [
Footnote
2/6]
In a letter to the County Board of Supervisors dated two days
after this suit was instituted, petitioner proposed a pilot public
tour program. He suggested monthly tours for 25 persons, with the
first tentatively scheduled for July 14. The tours, however, would
not include the cell portions of Greystone and would not allow any
use of cameras or communication with inmates. The Board approved
six such tours. Petitioner
Page 438 U. S. 22
then filed his answer and supporting affidavit explaining why he
had refused KQED access to the jail and identifying the recent
changes in policy regarding access to the jail and communication
between inmates and persons on the outside. Petitioner stated that,
if KQED's request had been granted, he would have felt obligated to
honor similar requests from other representatives of the press and
this could have disrupted mealtimes, exercise times, visiting
times, and court appearances of inmates. [
Footnote 2/7] He pointed out that the mail regulations
had recently been amended to delete a prohibition against
mentioning the names or actions of any correctional officers. With
respect to the scope of the proposed tours, petitioner explained
that the use of cameras would be prohibited because it would not be
possible to prevent 25 persons with cameras from photographing
inmates and security operations. Moreover, communication with
inmates would not be permitted, because of excessive time
consumption, "problems with control" of inmates and visitors, and a
belief "that interviewing would be excessively unwieldy." [
Footnote 2/8]
An evidentiary hearing on the motion for a preliminary
injunction was held after the first four guided tours had taken
place. The evidence revealed the inadequacy of the tours as a means
of obtaining information about the inmates and their conditions of
confinement for transmission to the public. The tours failed to
enter certain areas of the jail. [
Footnote 2/9] They afforded no opportunity to photograph
conditions within the facility,
Page 438 U. S. 23
and the photographs which the county offered for sale to tour
visitors omitted certain jail characteristics, such as catwalks
above the cells from which guards can observe the inmates.
[
Footnote 2/10] The tours
provided no opportunity to question randomly encountered inmates
about jail conditions. Indeed, to the extent possible, inmates were
kept out of sight during the tour, preventing the tour visitors
from obtaining a realistic picture of the conditions of confinement
within the jail. In addition, the fixed scheduling of the tours
prevented coverage of newsworthy events at the jail.
Of most importance, all of the remaining tours were completely
booked, and there was no assurance that any tour would be conducted
after December, 1975. The District Court found that KQED had no
access to the jail, and that the broad restraints on access were
not required by legitimate penological interests. [
Footnote 2/11]
Page 438 U. S. 24
The District Curt thereafter issued a preliminary injunction,
enjoining 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,"
or from preventing such representatives
"from utilizing photographic and sound equipment or from
utilizing inmate interviews in providing full and accurate coverage
of the Santa Rita facilities."
The court, however, recognized that petitioner should determine
the specific means of implementing the order and, in any event,
should retain the right to deny access when jail tensions or other
special circumstances require exclusion.
The United States Court of Appeals for the Ninth Circuit
affirmed, holding that the District Court did not abuse its
discretion in framing the preliminary injunction under review.
[
Footnote 2/12] MR. JUSTICE
REHNQUIST, acting as Circuit Justice, stayed the mandate, and, in
his opinion on the stay application, fairly stated the legal issue
we subsequently granted certiorari to decide:
"The legal issue to be raised by applicant's petition for
certiorari seems quite clear. If the 'no greater access' doctrine
of
Pell
\[v. Procunier, 417 U. S. 817,] and
Saxbe
\[v. Washington Post Co., 417 U. S.
843,] applies to this
Page 438 U. S. 25
case, the Court of Appeals and the District Court were wrong,
and the injunction was an abuse of discretion. If, on the other
hand, the holding in
Pell is to be viewed as impliedly
limited to the situation where there already existed substantial
press and public access to the prison, then
Pell and
Saxbe are not necessarily dispositive, and review by this
Court of the propriety of the injunction, in light of those cases,
would be appropriate, although not necessary."
429 U.S. 1341, 1344.
For two reasons, which will be discussed separately, the
decisions in
Pell and
Saxbe do not control the
propriety of the District Court's preliminary injunction. First,
the unconstitutionality of petitioner's policies which gave rise to
this litigation does not rest on the premise that the press has a
greater right of access to information regarding prison conditions
than do other members of the public. Second, relief tailored to the
needs of the press may properly be awarded to a representative of
the press which is successful in proving that it has been harmed by
a constitutional violation and need not await the grant of relief
to members of the general public who may also have been injured by
petitioner's unconstitutional access policy, but have not yet
sought to vindicate their rights.
I
This litigation grew out of petitioner's refusal to allow
representatives of the press access to the inner portions of the
Santa Rita facility. Following those refusals and the institution
of this suit, certain remedial action was taken by petitioner. The
mail censorship was relaxed, and an experimental tour program was
initiated. As a preliminary matter, therefore, it is necessary to
consider the relevance of the actions after March 31, 1975, to the
question whether a constitutional violation had occurred.
It is well settled that a defendant's corrective action in
Page 438 U. S. 26
anticipation of litigation or following commencement of suit
does not deprive the court of power to decide whether the previous
course of conduct was unlawful.
See United States v. W. T.
Grant Co., 345 U. S. 629,
345 U. S.
632-633, and cases cited. [
Footnote 2/13] The propriety of the court's exercise of
that power in this case is apparent. When this suit was filed,
there were no public tours. Petitioner enforced a policy of
virtually total exclusion of both the public and the press from
those areas within the Santa Rita jail where the inmates were
confined. At that time, petitioner also enforced a policy of
reading all inmate correspondence addressed to persons other than
lawyers and judges and censoring those portions that related to the
conduct of the guards who controlled their daily existence. Prison
policy, as well as prison walls, significantly abridged the
opportunities for communication of information about the conditions
of confinement in the Santa Rita facility to the public.1 [
Footnote 2/14] Therefore,
Page 438 U. S. 27
even if there .would not have been any constitutional violation
had the access policies adopted by petitioner following
commencement of this litigation been in effect all along, it was
appropriate for the District Court to decide whether the
restrictive rules in effect when KQED first requested access were
constitutional.
In
Pell v. Procunier, 417 U.S. at
417 U. S. 834,
the Court stated that "newsmen have no constitutional right of
access to prisons or their inmates beyond that afforded the general
public." But the Court has never intimated that a nondiscriminatory
policy of excluding entirely both the public and the press from
access to information about prison conditions would avoid
Page 438 U. S. 28
constitutional scrutiny. [
Footnote
2/15] Indeed,
Pell itself strongly suggests the
contrary.
In that case, representatives of the press claimed the right to
interview specifically designated inmates. In evaluating this
claim, the Court did not simply inquire whether prison officials
allowed members of the general public to conduct such interviews.
Rather, it canvassed the opportunities already available for both
the public and the press to acquire information regarding the
prison and its inmates. And the Court found that the policy of
prohibiting interviews with inmates specifically designated by the
press was "not part of an attempt by the State to conceal the
conditions in its prisons."
Id. at
417 U. S. 830.
The challenged restriction on access, which was imposed only after
experience revealed that such interviews posed disciplinary
problems, was an isolated limitation on the efforts of the press to
gather information about those conditions. It was against the
background of a record which demonstrated that both the press and
the general public were "accorded full opportunities to observe
prison conditions," [
Footnote
2/16]
Page 438 U. S. 29
that the Court considered the constitutionality of the single
restraint on access challenged in
Pell.
The decision in
Pell, therefore, does not imply that a
state policy of concealing prison conditions from the press, or a
policy denying the press any opportunity to observe those
conditions, could have been justified simply by pointing to like
concealment from, and denial to, the general public. If that were
not true, there would have been no need to emphasize the
substantial press and public access reflected in the record of that
case. [
Footnote 2/17] What Pell
does indicate is that the question whether respondents established
a probability of prevailing on
Page 438 U. S. 30
their constitutional claim is inseparable from the question
whether petitioner's policies unduly restricted the opportunities
of the general public to learn about the conditions of confinement
in Santa Rita jail. As in
Pell, in assessing its adequacy,
the total access of the public and the press must be
considered.
Here, the broad restraints on access to information regarding
operation of the jail that prevailed on the date this suit was
instituted are plainly disclosed by the record. The public and the
press had consistently been denied any access to those portions of
the Santa Rita facility where inmates were confined, and there had
been excessive censorship of inmate correspondence. Petitioner's
no-access policy, modified only in the wake of respondents' resort
to the courts, could survive constitutional scrutiny only if the
Constitution affords no protection to the public's right to be
informed about conditions within those public institutions where
some of its members are confined because they have been charged
with or found guilty of criminal offenses.
II
The preservation of a full and free flow of information to the
general public has long been recognized as a core objective of the
First Amendment to the Constitution. [
Footnote 2/18] It is for this reason that the First
Amendment protects not only the dissemination, but also the
receipt, of information and ideas.
See, e.g., Virginia Pharmacy
Board v. Virginia Citizens Consumer Council, 425 U.
S. 748,
425 U. S. 756;
Procunier v. Martinez, 416 U. S. 396,
416 U. S.
408-409;
Kleindienst v. Mandel, 408 U.
S. 753,
408 U. S.
762-763. [
Footnote
2/19]
Page 438 U. S. 31
Thus, in
Procunier v. Martinez, supra, the Court
invalidated prison regulations authorizing excessive censorship of
outgoing inmate correspondence because such censorship abridged the
rights of the intended recipients.
See also Morales v.
Schmidt, 489 F.2d 1335, 1346 n. 8 (CA7 1973). So here,
petitioner's prelitigation prohibition on mentioning the conduct of
jail officers in outgoing correspondence must be considered an
impingement on the noninmate correspondent's interest in receiving
the intended communication.
In addition to safeguarding the right of one individual to
receive what another elects to communicate, the First Amendment
serves an essential societal function. [
Footnote 2/20] Our system of self-government assumes
the existence of an informed citizenry. [
Footnote 2/21] As Madison wrote:
"A popular Government, without popular information, or the means
of acquiring it, is but a Prologue to a Farce
Page 438 U. S. 32
or a Tragedy; or, perhaps both. Knowledge will forever govern
ignorance: And a people who mean to be their own Governors, must
arm themselves with the power which knowledge gives."
9 Writings of James Madison 103 (G. Hunt ed.1910). It is not
sufficient, therefore, that the channels of communication be free
of governmental restraints. Without some protection for the
acquisition of information about the operation of public
institutions such as prisons by the public at large, the process of
self-governance contemplated by the Framers would be stripped of
its substance. [
Footnote
2/22]
For that reason, information gathering is entitled to some
measure of constitutional protection.
See, e.g., Branzburg v.
Hayes, 408 U. S. 665,
408 U. S. 681;
Pell v. Procunier, 417 U.S. at
417 U. S. 833.
[
Footnote 2/23] As this Court's
decisions clearly indicate, however, this protection is not for the
private benefit of those who might qualify as representatives of
the "press," but to insure that the citizens are fully informed
regarding matters of public interest and importance.
In
Grosjean v. American Press Co., 297 U.
S. 233, representatives
Page 438 U. S. 33
of the "press" challenged a state tax on the advertising
revenues of newspapers. In the Court's words, the issue raised by
the tax went
"to the heart of the natural right of the members of an
organized society, united for their common good, to impart and
acquire information about their common interests."
Id. at
297 U. S. 243.
The opinion described the long struggle in England against the
stamp tax and tax on advertisements -- the so-called "taxes on
knowledge":
"[I]n the adoption of the [taxes,] the dominant and controlling
aim was to prevent, or curtail the opportunity for, the acquisition
of knowledge by the people in respect of their governmental
affairs. . . . The aim of the struggle [against those taxes] was .
. . to establish and preserve the right of the English people to
full information in respect of the doings or misdoings of their
government. Upon the correctness of this conclusion the very
characterization of the exactions as 'taxes on knowledge' sheds a
flood of corroborative light. In the ultimate, an informed and
enlightened public opinion was the thing at stake."
Id. at
297 U. S.
247.
Noting the familiarity of the Framers with this struggle, the
Court held:
"[S]ince informed public opinion is the most potent of all
restraints upon misgovernment, the suppression or abridgement of
the publicity afforded by a free press cannot be regarded otherwise
than with grave concern. The tax here involved is bad . . .
because, in light of its history and of its present setting, it is
seen to be a deliberate and calculated device . . . to limit the
circulation of information to which the public is entitled in
virtue of the constitutional guaranties."
Id. at
297 U. S.
250.
A recognition that the "underlying right is the right of the
public generally" [
Footnote 2/24]
is also implicit in the doctrine that "newsmen
Page 438 U. S. 34
have no constitutional right of access to prisons or their
inmates beyond that afforded the general public."
Pell v.
Procunier, supra at
417 U. S. 834.
In
Pell, it was unnecessary to consider the extent of the
public's right of access to information regarding the prison and
its inmates in order to adjudicate the press claim to a particular
form of access, since the record demonstrated that the flow of
information to the public, both directly and through the press, was
adequate to survive constitutional challenge; institutional
considerations justified denying the single, additional mode of
access sought by the press in that case.
Here, in contrast, the restrictions on access to the inner
portions of the Santa Rita jail that existed on the date this
litigation commenced concealed from the general public the
conditions of confinement within the facility. The question is
whether petitioner's policies, which cut off the flow of
information at its source, abridged the public's right to be
informed about those conditions.
The answer to that question does not depend upon the degree of
public disclosure which should attend the operation of most
governmental activity. Such matters involve questions of policy
which generally must be resolved by the political branches of
government. [
Footnote 2/25]
Moreover, there are unquestionably occasions when governmental
activity may properly be carried on in complete secrecy. For
example, the public and the press are commonly excluded from "grand
jury proceedings,
Page 438 U. S. 35
our own conferences, [and] the meetings of other official bodies
gathered in executive session. . . ."
Branzburg v. Hayes,
408 U.S. at
408 U. S. 684;
Pell v. Procunier, 417 U.S. at
417 U. S. 834.
[
Footnote 2/26] In addition, some
functions of government -- essential to the protection of the
public and indeed our country's vital interests -- necessarily
require a large measure of secrecy, subject to appropriate
legislative oversight. [
Footnote
2/27] In such situations, the reasons for withholding
information from the public are both apparent and legitimate.
In this case, however,
"[r]espondents do not assert a right to force disclosure of
confidential information or to invade in any way the decisionmaking
processes of governmental officials. [
Footnote 2/28]"
They simply seek an end to petitioner's policy of concealing
prison conditions from the public. Those conditions
Page 438 U. S. 36
are wholly without claim to confidentiality. While prison
officials have an interest in the time and manner of public
acquisition of information about the institutions they administer,
there is no legitimate penological justification for concealing
from citizens the conditions in which their fellow citizens are
being confined. [
Footnote
2/29]
The reasons which militate in favor of providing special
protection to the flow of information to the public about prisons
relate to the unique function they perform in a democratic society.
Not only are they public institutions, financed with public funds
and administered by public servants, [
Footnote 2/30] they are an integral component of the
criminal justice system. The citizens confined therein are
temporarily, and sometimes permanently, deprived of their liberty
as a result of a trial which must conform to the dictates of the
Constitution. By express command of the Sixth Amendment, the
proceeding must be a "public trial." [
Footnote 2/31] It is important not only that the
Page 438 U. S. 37
trial itself be fair, but also that the community at large have
confidence in the integrity of the proceeding. [
Footnote 2/32] That public interest survives the
judgment of conviction and appropriately carries over to an
interest in how the convicted person is treated during his period
of punishment and hoped-for rehabilitation. While a ward of the
State and subject to its stern discipline, he retains
constitutional protections against cruel and unusual punishment,
see, e.g., Estelle v. Gamble, 429 U. S.
97, a protection which may derive more practical support
from access to information about prisons by the public than by
occasional litigation in a busy court. [
Footnote 2/33]
Some inmates -- in Santa Rita, a substantial number -- are
pretrial detainees. Though confined pending trial, they have not
been convicted of an offense against society, and are entitled to
the presumption of innocence. Certain penological objectives,
e.g., punishment, deterrence, and rehabilitation, which
are legitimate in regard to convicted prisoners, are inapplicable
to pretrial detainees. [
Footnote
2/34] Society has a special interest
Page 438 U. S. 38
in ensuring that unconvicted citizens are treated in accord with
their status.
In this case, the record demonstrates that both the public and
the press had been consistently denied any access to the inner
portions of the Santa Rita jail, that there had been excessive
censorship of inmate correspondence, and that there was no valid
justification for these broad restraints on the flow of
information. An affirmative answer to the question whether
respondents established a likelihood of prevailing on the merits
did not depend, in final analysis, on any right of the press to
special treatment beyond that accorded the public at large. Rather,
the probable existence of a constitutional violation rested upon
the special importance of allowing a democratic community access to
knowledge about how its servants were treating some of its members
who have been committed to their custody. An official prison policy
of concealing such knowledge from the public by arbitrarily cutting
off the flow of information at its source abridges the freedom of
speech and of the press protected by the First and Fourteenth
Amendments to the Constitution. [
Footnote 2/35]
III
The preliminary injunction entered by the District Court granted
relief to KQED without providing any specific remedy for other
members of the public. Moreover, it imposed duties on petitioner
that may not be required by the Constitution itself. The injunction
was not an abuse of discretion for either of these reasons.
Page 438 U. S. 39
If a litigant can prove that he has suffered specific harm from
the application of an unconstitutional policy, it is entirely
proper for a court to grant relief tailored to his needs without
attempting to redress all the mischief that the policy may have
worked on others. Though the public and the press have an equal
right to receive information and ideas, different methods of
remedying a violation of that right may sometimes be needed to
accommodate the special concerns of the one or the other.
Preliminary relief could therefore appropriately be awarded to KQED
on the basis of its proof of how it was affected by the challenged
policy without also granting specific relief to the general public.
Indeed, since our adversary system contemplates the adjudication of
specific controversies between specific litigants, it would have
been improper for the District Court to attempt to provide a remedy
to persons who have not requested separate relief. Accordingly,
even though the Constitution provides the press with no greater
right of access to information than that possessed by the public at
large, a preliminary injunction is not invalid simply because it
awards special relief to a successful litigant which is a
representative of the press. [
Footnote 2/36]
Page 438 U. S. 40
Nor is there anything novel about injunctive relief which goes
beyond a mere prohibition against repetition of previous unlawful
conduct. In situations which are both numerous and varied, the
chancellor has required a wrongdoer to take affirmative steps to
eliminate the effects of a violation of law even though the law
itself imposes no duty to take the remedial action decreed by the
court. [
Footnote 2/37] It follows
that, if prison regulations and policies have unconstitutionally
suppressed information and interfered with communication in
violation of the First Amendment, the District Court has the power
to require, at least temporarily, that the channels of
communication be opened more widely than the law would otherwise
require in order to let relevant facts, which may have been
concealed, come to light. Whether or not final relief along the
lines of that preliminarily awarded in this case would be "aptly
tailored to remedy the consequences of the constitutional
violation,"
Milliken v. Bradley, 433 U.
S. 267,
433 U. S. 287,
it is perfectly clear that the court had power to enter an
injunction which was broader than a mere prohibition against
illegal conduct.
The Court of Appeals found no reason to question the specific
preliminary relief ordered by the District Court. Nor is it
appropriate for this Court to review the scope of the order.
[
Footnote 2/38] The order was
preliminary in character, and would have been subject to revision
before the litigation reached a final conclusion.
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
See Brenneman v. Madigan, 343 F.
Supp. 128, 132-133 (ND Cal.1972). Based on a personal visit to
the facility, Judge Zirpoli reached tho "inescapable conclusion . .
. that Greystone should be razed to the ground."
[
Footnote 2/2]
The psychiatrist was discharged after the telecast.
[
Footnote 2/3]
Access was denied, for example, to cover stories of alleged gang
rapes and poor physical conditions within the jail, Tr. 208, and of
recent escapes from the jail,
id. at 135-136.
[
Footnote 2/4]
A previous sheriff had conducted one "press tour" in 1972,
attended by reporters and cameramen. But the facility had been
"freshly scrubbed" for the tour, and the reporters were forbidden
to ask any questions of the inmates they encountered, App.
16-17.
[
Footnote 2/5]
The NAACP alleged a
"special concern with conditions at . . . Santa Rita, because
the prisoner population at the jail is disproportionately black
[and the members of the NAACP] depend on the public media to keep
them informed of such conditions so that they can meaningfully
participate in the current public debate on jail conditions in
Alameda County."
Complaint, 3. Since no special relief was requested by or
granted to the NAACP, the parties have focused on the claim of
KQED.
[
Footnote 2/6]
The Sheriff had a master's degree in criminology from the
University of California at Berkeley and 10 years' experience in
law enforcement with the San Francisco Police Department. As
Sheriff, he had general supervision and control over the jail
facilities in San Francisco. He expressed the
"opinion, based on my education and experience in law
enforcement and jail administration, that such programs make an
important contribution to public understanding of jails and jail
conditions. In my opinion, jails are public institutions, and the
public has a right to know what is being done with their tax
dollars being spent on jail facilities and programs."
App. 15.
[
Footnote 2/7]
In contrast to the floodgate concerns expressed by petitioner,
the Information Officer at San Quentin testified that, after the
liberalization of access rules at that institution, media requests
to enter the facility actually declined. Tr. 152. This testimony
may suggest that the mere existence of inflexible access barriers
generates a concern that conditions within the closed institution
require especially close scrutiny.
[
Footnote 2/8]
App. 24.
[
Footnote 2/9]
The tour did not include Little Greystone, which was the subject
of reports of beatings, rapes, and poor conditions, or the
disciplinary cells.
[
Footnote 2/10]
There were also no photos of the women's cells, of the "safety
cell," of the "disciplinary cells," or of the interior of Little
Greystone. In addition, the photograph of the dayroom omits the
television monitor that maintains continuous observation of the
inmates and the open urinals.
[
Footnote 2/11]
"Sheriff Houchins admitted that, because Santa Rita has never
experimented with a more liberal press policy than that presently
in existence, there is no record of press disturbances.
Furthermore, the Sheriff has no recollection of hearing of any
disruption caused by the media at other penal institutions.
Nevertheless Sheriff Houchins stated that he feared that invasion
of inmates' privacy, creation of jail 'celebrities,' and threats to
jail security would result from a more liberal press policy. While
such fears are not groundless, convincing testimony was offered
that such fears can be substantially allayed."
"As to the inmates' privacy, the media representatives commonly
obtain written consent from those inmates who are interviewed
and/or photographed, and coverage of inmates is never provided
without their full agreement. As to pretrial detainees who could be
harmed by pretrial publicity, consent can be obtained not only from
such inmates, but also from their counsel. Jail 'celebrities' are
not likely to emerge as a result of a random interview policy.
Regarding jail security, any cameras and equipment brought into the
jail can be searched. While Sheriff Houchins expressed concern that
photographs of electronic locking devices could be enlarged and
studied in order to facilitate escape plans, he admitted that the
inmates themselves can study and sketch the locking devices. Most
importantly, there was substantial testimony to the effect that
ground rules laid down by jail administrators, such as a ban on
photographs of security devices, are consistently respected by the
media."
"Thus, upon reviewing the evidence concerning the present media
policy at Santa Rita, the Court finds the plaintiffs have
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 which must be struck in
plaintiffs' favor."
App. 69.
[
Footnote 2/12]
546 F.2d 284 (1976)
[
Footnote 2/13]
Moreover, along with the power to decide the merits, the court's
power to grant injunctive relief survives the discontinuance of
illegal conduct.
"It is the duty of the courts to beware of efforts to defeat
injunctive relief by protestations of repentance and reform,
especially when abandonment seems timed to anticipate suit, and
there is probability of resumption."
United States v. Oregon Medical Soc., 343 U.
S. 326,
343 U. S. 333.
When the District Court issued the preliminary injunction, there
was no assurance that the experimental public tours would continue
beyond the next month. Thus, it would certainly have been
reasonable for the court to assume that, absent injunctive relief,
the access to the inner portions of the Santa Rita facility would
soon be reduced to its prelitigation level.
[
Footnote 2/14]
Thus, when this suit was filed, there existed no opportunity for
outsiders to observe the living conditions of the inmates at Santa
Rita. And the mail regulations prohibited statements about the
character of the treatment of prisoners by correctional
officers.
I cannot agree with petitioner that the inmates' visitation and
telephone privileges were reasonable alternative means of informing
the public at large about conditions within Santa Rita. Neither
offered an opportunity to observe those conditions. Even if a
member of the general public or a representative of the press were
fortunate enough to obtain the name of an inmate to visit, access
to the facility would not have included the inmate's place of
confinement. The jail regulations do not indicate that an inmate in
the minimum security portion of the jail may enlist the aid of
Social Service officers to telephone the press or members of the
general public to complain of the conditions of confinement. App.
38. Even if a maximum security inmate may make collect telephone
calls, it is unlikely that a member of the general public or
representative of the press would accept the charges, especially
without prior knowledge of the call's communicative purpose.
Although sentenced prisoners may not be interviewed under any
circumstances, pretrial detainees may, according to petitioner, be
interviewed with the consent of the inmate, defense counsel, and
prosecutor, and with an order from the court. Not only would such
an interview take place outside the confines of the jail, but the
requirement of a court order makes this a patently inadequate means
of keeping the public informed about the jail and its inmates.
Finally, petitioner suggests his willingness to provide the
press with information regarding the release of prisoners which,
according to petitioner, would permit interviews of former
prisoners regarding the conditions of their recent confinement.
This informal offer was apparently only made in response to
respondents' lawsuit. Moreover, it too fails to afford the public
any opportunity to observe the conditions of confinement.
Hence, the means available at the time this suit was instituted
for informing the general public about conditions in the Santa Rita
jail were, as a practical matter, nonexistent.
[
Footnote 2/15]
In
Zemel v. Rusk, 381 U. S. 1,
381 U. S. 17, the
Court said:
"The right to speak and publish does not carry with it the
unrestrained right to gather information."
(Emphasis added.) And in
Branzburg v. Hayes,
408 U. S. 665,
408 U. S.
681:
"We do not question the significance of free speech, press, or
assembly to the country's welfare. Nor is it suggested that news
gathering does not qualify for First Amendment protection; without
some protection for seeking out the news, freedom of the press
could be eviscerated."
Both statements imply that there is a right to acquire knowledge
that derives protection from the First Amendment.
See id.
at
408 U. S. 728
n. 4 (STEWART, J., dissenting).
[
Footnote 2/16]
"The Department of Corrections regularly conducts public tours
through the prisons for the benefit of interested citizens. In
addition, newsmen are permitted to visit both the maximum security
and minimum security sections of the institutions and to stop and
speak about any subject to any inmates whom they might encounter.
If security considerations permit, corrections personnel will step
aside to permit such interviews to be confidential. Apart from
general access to all parts of the institutions, newsmen are also
permitted to enter the prisons to interview inmates selected at
random by the corrections officials. By the same token, if a
newsman wishes to write a story on a particular prison program, he
is permitted to sit in on group meetings and to interview the
inmate participants."
417 U.S. at
417 U. S.
830.
[
Footnote 2/17]
Nor would it have been necessary to note, as the
Pell
opinion did, the fact that the First Amendment protects the free
flow of information to the public:
"The constitutional guarantee of a free press "assures the
maintenance of our political system and an open society,"
Time,
Inc. v. Hill, 385 U. S. 374,
385 U. S. 389
(1967), and secures "the paramount public interest in a free flow
of information to the people concerning public officials,"
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 77
(1964).
See also New York Times Co. v. Sullivan,
376 U. S. 254
(1964). By the same token, "
[a]ny system of prior restraints of
expression comes to this Court bearing a heavy presumption against
its constitutional validity.'" New York Times Co. v. United
States, 403 U. S. 713,
403 U. S. 714
(1971); Organization for a Better Austin v. Keefe,
402 U. S. 415
(1971); Bantam Books, Inc. v. Sullivan, 372 U. S.
58, 372 U. S. 70
(1963); Near v. Minnesota ex rel. Olson, 283 U.
S. 697 (1931). Correlatively, the First and Fourteenth
Amendments also protect the right of the public to receive such
information and ideas as are published. Kleindienst v.
Mandel, 408 U.S. at 762-763; Stanley v. Georgia,
394 U. S. 557,
394 U. S. 564
(1969)."
"In
Branzburg v. Hayes, 408 U. S.
665 (1972), the Court went further and acknowledged that
'news gathering is not without its First Amendment protections,'
id. at
408 U. S. 707, for 'without
some protection for seeking out the news, freedom of the press
could be eviscerated,'
id. at
408 U. S.
681."
Id. at
417 U. S.
832-833.
[
Footnote 2/18]
See, e.g., Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, 425 U. S. 748,
425 U. S.
764-765;
Garrison v. Louisiana, 379 U. S.
64,
379 U. S. 77;
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S.
266-270;
Associated Press v. United States,
326 U. S. 1,
326 U. S. 20;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 250.
See also Branzburg v. Hayes, 408 U.
S. 665,
408 U. S. 726
n. 2 (STEWART, J., dissenting).
[
Footnote 2/19]
See also Lamont v. Postmaster General, 381 U.
S. 301;
Red Lion Broadcasting Co. v. FCC,
395 U. S. 367,
395 U. S. 390;
Stanley v. Georgia, 394 U. S. 557,
394 U. S. 564;
Martin v. City of Struthers, 319 U.
S. 141;
Marsh v. Alabama, 326 U.
S. 501.
[
Footnote 2/20]
"What is at stake here is the societal function of the First
Amendment in preserving free public discussion of governmental
affairs. No aspect of that constitutional guarantee is more rightly
treasured than its protection of the ability of our people, through
free and open debate, to consider and resolve their own destiny. .
. . It embodies our Nation's commitment to popular
self-determination and our abiding faith that the surest course for
developing sound national policy lies in a free exchange of views
on public issues. And public debate must not only be unfettered; it
must also be informed. For that reason, this Court has repeatedly
stated that First Amendment concerns encompass the receipt of
information and ideas, as well as the right of free
expression."
Saxbe v. Washington Post Co., 417 U.
S. 843,
417 U. S.
862-863 (POWELL, J., dissenting).
[
Footnote 2/21]
See A. Meiklejohn, Free Speech and Its Relation to
Self-Government 26 (1948):
"Just so far as . . . the citizens who who are to decide an
issue are denied acquaintance with information or opinion or doubt
or disbelief or criticism which is relevant to that issue, just so
far the result must be ill-considered, ill-balanced planning, for
the general good.
It is that mutilation of the thinking process
of the community against which the First Amendment to the
constitution is directed."
[
Footnote 2/22]
Admittedly, the right to receive or acquire information is not
specifically mentioned in the Constitution. But
"the protection of the Bill of Rights goes beyond the specific
guarantees to protect from . . . abridgement those equally
fundamental personal rights necessary to make the express
guarantees fully meaningful. . . . The dissemination of ideas can
accomplish nothing if otherwise willing addressees are not free to
receive and consider them. It would be a barren marketplace of
ideas that had only sellers and no buyers."
Lamont v. Postmaster General, 381 U.S. at
381 U. S. 308
(BRENNAN, J., concurring). It would be an even more barren
marketplace that had willing buyers and sellers and no meaningful
information to exchange.
[
Footnote 2/23]
See also Branzburg v. Hayes, supra, at
408 U. S. 728
(STEWART, J., dissenting):
"No less important to the news dissemination process is the
gathering of information. News must not be unnecessarily cut off at
its source, for without freedom to acquire information, the right
to publish would be impermissibly compromised. Accordingly, a right
to gather news, of some dimensions, must exist."
[
Footnote 2/24]
Saxbe v. Washington Post Co., supra at
417 U. S. 864
(POWELL, J., dissenting) .
[
Footnote 2/25]
In
United States v. Nixon, 418 U.
S. 683,
418 U. S. 705
n. 15, we pointed out that the Founders themselves followed a
policy of confidentiality:
"There is nothing novel about governmental confidentiality. The
meetings of the Constitutional Convention in 1787 were conducted in
complete privacy. 1 M. Farrand, The Records of the Federal
Convention of 1787, pp. xi-xxv (1911). Moreover, all records of
those meetings were sealed for more than 30 years after the
Convention.
See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8
(1818). Most of the Framers acknowledged that, without secrecy, no
constitution of the kind that was developed could have been
written. C. Warren, The Making of the Constitution 134-139
(1937)."
[
Footnote 2/26]
In the case of grand jury proceedings, for example, the secrecy
rule has been justified on several grounds:
"'(1) To prevent the escape of those whose indictment may be
contemplated; (2) to insure the utmost freedom to the grand jury in
its deliberations, and to prevent persons subject to indictment or
their friends from importuning the grand jurors; (3) to prevent
subornation of perjury or tampering with the witnesses who may
testify before grand jury and later appear at the trial of those
indicted by it; (4) to encourage free and untrammeled disclosures
by persons who have information with respect to the commission of
crimes; (5) to protect innocent accused who is exonerated from
disclosure of the fact that he has been under investigation, and
from the expense of standing trial where there was no probability
of guilt.'"
United States v. Procter & Gamble Co., 356 U.
S. 677,
356 U. S.
681-682, n. 6, quoting
United States v. Rose,
215 F.2d 617, 628-629 (CA3 1959).
[
Footnote 2/27]
In
United States v. Nixon, supra, we also recognized
the valid need for protection of communications between high
Government officials and those who advise and assist them in the
performance of their manifold duties, explaining that
"the importance of this confidentiality is too plain to require
further discussion. Human experience teaches that those who expect
public dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests, to the
detriment of the decisionmaking process."
418 U.S. at
418 U. S.
705.
[
Footnote 2/28]
Saxbe v. Washington Post Co., 417 U.S. at
417 U. S. 861
(POWELL, J., dissenting) .
[
Footnote 2/29]
The Court in
Saxbe noted that "
prisons are
institutions where public access is generally limited.'"
Id. at 417 U. S. 849
(citation omitted). This truism reflects the fact that there are
legitimate penological interests served by regulating access,
e.g., security and confinement. But concealing prison
conditions from the public is not one of those legitimate
objectives. Nixon v. Warner Communications, Inc.,
435 U. S. 589,
decided this Term, does not suggest a contrary conclusion. The
effect of the Court's decision in that case was to limit the access
by the electronic media to the Nixon tapes to that enjoyed by the
press and the public at the time of the trial. That case presented
"no question of a truncated flow of information to the public."
Id. at 435 U. S.
609.
[
Footnote 2/30]
"The administration of these institutions, the effectiveness of
their rehabilitative programs, the conditions of confinement that
they maintain, and the experiences of the individuals incarcerated
therein are all matters of legitimate societal interest and
concern."
Saxbe v. Washington Post Co., supra at
417 U. S. 861
(POWELL, J., dissenting).
[
Footnote 2/31]
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation. . . ."
U.S.Const., Amdt. 6.
[
Footnote 2/32]
"The right to a public trial is not only to protect the accused,
but to protect as much the public's right to know what goes on when
men's lives and liberty are at stake. . . ."
Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965).
See
also In re Oliver, 333 U. S. 257,
333 U. S.
270:
"The knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an
effective restraint on possible abuse of judicial power."
[
Footnote 2/33]
In fact, conditions within the Greystone portion of the Santa
Rita facility had been found to constitute cruel and unusual
punishment.
Brenneman v. Madigan, 343 F. Supp. at 132-133.
The public's interest in ensuring that these conditions have been
remedied is apparent. For, in final analysis, it is the citizens
who bear responsibility for the treatment accorded those confined
within penal institutions.
[
Footnote 2/34]
"Incarceration after conviction is imposed to punish, to deter,
and to rehabilitate the convict. . . . Some freedom to accomplish
these ends must, of necessity, be afforded prison personnel.
Conversely, where incarceration is imposed prior to conviction,
deterrence, punishment, and retribution are not legitimate
functions of the incarcerating officials. Their role is but a
temporary holding operation, and their necessary freedom of action
is concomitantly diminished. . . . Punitive measures in such a
context are out of harmony with the presumption of innocence."
Anderson v. Nosser, 438 F.2d 183, 190 (CA5 1971).
[
Footnote 2/35]
When fundamental freedoms of citizens have been at stake, the
Court has recognized that an abridgment of those freedoms may
follow from a wide variety of governmental policies.
See, e.g.,
American Communications Assn. v. Douds, 339 U.
S. 382;
NAACP v. Alabama, 357 U.
S. 449;
Boyd v. United States, 116 U.
S. 616;
Grosjean v. American Press Co.,
297 U. S. 233.
[
Footnote 2/36]
Moreover, the relief granted to KQED will redound to the benefit
of members of the public interested in obtaining information about
conditions in the Santa Rita jail. The press may have no greater
constitutional right to information about prisons than that
possessed by the general public. But when the press does acquire
information and disseminate it to the public, it performs an
important societal function.
"In seeking out the news, the press therefore acts as an agent
of the public at large. It is the means by which the people receive
that free flow of information and ideas essential to intelligent
self-government. By enabling the public to assert meaningful
control over the political process, the press performs a crucial
function in effecting the societal purpose of the First
Amendment."
Saxbe v. Washington Post Co., 417 U.S. at
417 U. S.
863-864 (POWELL, J., dissenting).
See also Branzburg
v. Hayes, 408 U.S. at
408 U. S. 726-727 (STEWART, J., dissenting) .
In the context of fashioning a remedy for a violation of rights
protected by the First Amendment, consideration of the role of the
press in our society is appropriate.
[
Footnote 2/37]
For an extensive discussion of this practice in the context of
desegregation decrees,
see the Court's opinion last Term
in
Milliken v. Bradley, 433 U. S. 267.
[
Footnote 2/38]
It should be noted, however, that the District Court was
presented with substantial evidence indicating that the use of
cameras and interviews with randomly selected inmates neither
jeopardized security nor threatened legitimate penological
interests in other prisons where such access was permitted.
See
Procunier v. Martinez, 416 U. S. 396,
416 U. S. 414
n. 14.