Houchins v. KQED, Inc. Brief in Opposition to Petition for Certiorari

This item is featured in:

William Turner Oral History

    O ctober T e e m ,, 1976.

No. 76-1310.

THOMAS L. HOUCHINS,
P e t it io n e r ,

v.

KQED, INC., e t  a t .,

R e spo n d e n t s .

Brief in Opposition to Petition for Certiorari.

W illia m  B e n n e t t  T u r n e r ,
Pound 502,

Cambridge, Massachusetts 02138,
J ack  G reenberg ,
J am es M. N abr.it , III,
S ta nley  A. Bass.

10 Columbus Circle,
New York, New York 10019,

A n n  B r ic k ,
Suite 2900,

650 California Street,
San Francisco, California 94108. 

Attorneys for Respondents.

S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s .

ADDISON C. GETCHELL « SON, INC., THE LAWYERS’ PRINTER, BOSTON



Table of Contents.

Question Presented 1
Statement of the Case 2

A. Proceedings in the Courts Below 2
B. Statement of Facts 3

1. Events Leading to this Suit 3
2. The Guided Tours 4
3. Press Access to other Jails and Prisons 6

a. San Francisco County 6
b. Other County Jails 7
c. San Quentin 7
d. National Policy 8

4. Experience of Other News Reporters 9
Reasons Why Certiorari Should Not Be Granted 9

I. The Court Should Not Exercise Its Certiorari
Jurisdiction to Review an Entirely Reason­
able Preliminary Injunction Granted in the 
Exercise of the Trial Court’s Discretion 9

II. The Preliminary Order is Not Inconsistent
with Pell v. Procunier and Saxbe v. Washing­
ton Post 12

Conclusion 14
Appendix: San Francisco Examiner, Feb. 16, 1977,

p. 1 15

T able of A u th orities Cited.

Cases.

Anheuser-Busch, Inc. v. Teamsters Local No. 633,
511 F. 2d 1907 (1st Cir.), cert, denied 423 U.S. 875 
(1975) 10



11 TABLE OF AU THORITIES CITED

Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal.
1972) 2

Deckert v. Independent Shares Corp., 311 U.S. 282
(1940) 10

K-2 Ski Co. v. Head Ski Co., 467 F. 2d 1087 (9th Cir.
1972) 10

Nebraska Press Ass’n v. Stuart, 423 U.S. 1327 (1975) 11
Pell v. Procunier, 417 U.S. 817 (1974) 6, 8,12,13
Procunier v. Martinez, 416 U.S. 396 (1974) 11, 13
Saxbe v. Washington Post, 417 U.S. 848 (1974) 8,12
United States v. O’Brien, 391 U.S. 367 (1968) 13

Ot h e r  A u t h o r it ie s .

Standard 2.17, National Advisory Commission on 
Criminal Justice Standards and Goals 8

11 Wright & Miller, Federal Practice and Procedure,
Civil, § 2948 (1973) 10



O ctober T e r m , 1976.

Suprem e Court of tlie United States.

No. 76-1310.

THOMAS L. HOUCHINS, 
P e t it io n e r , 

v.
KQED, INC., e t  al ., 

R e spo n d e n t s .

B rief in O pposition to P etitio n  for Certiorari.

Q uestion Presented .

After a full evidentiary hearing, the district court 
granted a preliminary injunction enjoining the petitioner 
Sheriff from excluding respondent KQED from the Ala­
meda County jail, for the purpose of reporting on news­
worthy events there, except when exclusion is justified 
by jail security. Before this suit was filed, petitioner 
completely excluded both press and public. After suit 
was filed, petitioner began providing limited guided tours 
for the public, and the press was allowed to join the tours. 
The district court found that restriction to these tours 
unreasonably limited KQED’s ability to gather and dis­
seminate information to the public. The court also found 
that reasonable access by the press would not result in



2

harm to petitioner’s interests. The question presented is 
whether, in these circumstances, the district court abused 
its discretion in granting the preliminary injunction.

Statement of the Case.

A. P roceedings in  t h e  C ourts B elo w .

Respondents (plaintiffs in the district court) are KQED, 
Inc. and the Alameda and the Oakland branches of the 
NAACP. KQED is a non-profit corporation engaged in 
educational television and radio broadcasting. Publicly- 
supported, KQED serves the counties in the San Francisco 
Bay Area. It maintains a daily television news program 
on Channel 9, entitled “ Newsroom.” The members of 
the NAACP plaintiffs reside in Alameda County, Cali­
fornia.

Petitioner Thomas L. Houchins is the Sheriff of Ala­
meda County and operates the county jail. This action 
was filed because the Sheriff excluded KQED, as a mat­
ter of a general policy of press exclusion, from covering 
newsworthy events and questionable conditions at the jail.1 
Respondents moved for a preliminary injunction, seeking 
to obtain reasonable access to the jail. Numerous affidavits 
were submitted with the motion, including the affidavit of 
the Sheriff of San Francisco County and several experi­
enced news reporters. The district court also held an 
evidentiary hearing, where Sheriff Houchins and one of 
his lieutenants testified. Respondents presented the testi­
mony of the Sheriff of San Francisco, an official from San 
Quentin State Prison and three television news reporters,

1 In Brenneman v. Madigcm, 343 F. Supp. 128, 132-33 (N.D. 
Cal. 1972), the court found conditions at the jail to be “ shock­
ing and debasing,” violating “ basic standards of human de­
cency,” so “ truly deplorable” as to constitute cruel and unusual 
punishment.



3

to the general effect that press access is freely and rou­
tinely provided in other jails and prisons in the area and 
that this created no problems whatever for the institu­
tions.

On November 20, 1975, the district court granted pre­
liminary injunctive relief, providing for reasonable ac­
cess by KQED to the jail. The specific methods of imple­
menting such access were left to the Sheriff. The Sheriff 
then sought and was granted a stay of the order for two 
weeks, to enable him to develop procedures for press ac­
cess — e.g., searches of reporters and their equipment, 
proper identification of press representatives, instructions 
as to matters that could not be photographed, consent 
forms for interviews, etc. But instead of implementing 
any such procedures, the Sheriff filed notice of appeal and 
obtained a stay from two judges of the Ninth Circuit. The 
appeal was then expedited.

On November 1, 1976, the Court of Appeals unanimously 
affirmed the preliminary injunction issued by the district 
court. On December 22, 1976, the court below denied the 
Sheriff’s petition for rehearing. No member of the entire 
Ninth Circuit voted to rehear the case en banc. The Court 
of Appeals also denied a stay pending application for a 
writ of certiorari, but a stay was granted by Mr. Justice 
Rehnquist on January 28, 1977.

B. S ta tem en t  of F acts.

1. Events leading to this suit.
KQED’s Newsroom has for many years reported reg­

ularly on newsworthy events at prisons and jails in the 
San Francisco Bay Area. A large number of stories 
have been covered on the premises of the institutions, 
with film, video or still camera. Included have been 
stories from the San Francisco, Contra Costa, San Mateo



4

and Santa Clara County jails and San Quentin and Sole- 
dad prisons. None of this news gathering activity has 
ever resulted in any jail disruption or danger of any kind.2

In March, 1975, KQED’s Newsroom reported on a sui­
cide of a prisoner at the Alameda County jail. KQED 
also reported statements by a jail psychiatrist that condi­
tions at the facility were partly responsible for the pris­
oners’ emotional problems. The psychiatrist was fired 
after he appeared on Newsroom.

In connection with this developing news story, a KQED 
reporter telephoned petitioner Houchins and requested 
permission to see the jail facility and take pictures there. 
The Sheriff refused, stating only that it was his “ policy” 
not to permit any press access to the jail. This was also 
his response to another television reporter who sought to 
cover stories of alleged gang rapes and poor conditions 
at the jail.

Prior to the filing of this suit, the Alameda County 
jail was completely closed to the press even though the 
Sheriff had never even heard of any disruption in any 
jail or prison, anywhere, because of news media access.

2. The guided tours.
After this suit was filed, petitioner initiated a series 

of guided tours for the public. Each tour was limited 
to 25 persons. The tours were booked on a first come- 
first served basis. Representatives of the press were per­
mitted to go on the tours if they signed up in time. All 
six tours for 1975 were completely booked within a week 
after they were announced in July. Thus, any reporter

2 In covering stories on location in jails and prisons, KQED 
recognizes that inmates are entitled to privacy, and this is re­
spected. As a matter of policy, KQED does not photograph or 
interview inmates without their consent. When appropriate or 
required, KQED obtains formal written consents.



5

who did not instantly sign up for a tour weeks or months 
in advance was completely barred from the jail for the 
balance of the year.

The guided tours took the tourists through most but 
not all of the jail facilities. Excluded was the notorious 
“ Little Greystone,” the scene of alleged beatings, rapes 
and poor conditions. Also excluded were the “ disciplin­
ary cells” in the Greystone facility.

At the outset of each tour, the officials laid down the 
ground rules for the tourists. It was forbidden to speak 
with any inmates who might be encountered. No photo­
graphs were permitted. The Sheriff offered a series of 
20 photographs for sale to the tourists, at $2 each or 
$40 for the set. None of the photos showed inmate life; 
they depicted only selected portions of the plant and equip­
ment.

The evidence before the district court demonstrated 
several ways in which restriction to the tours unreason­
ably limited KQED’s ability to gather and disseminate in­
formation to the public:

(a) The tours were completely guided and were ac­
companied by several guards. The tourists were of course 
shown only what the guards allowed them to see.

(b) Because the tourists were forbidden to speak with 
any inmate, they could hear only what the officials told 
them and got only “ one side of the story.”

(c) The Sheriff testified that inmates must be kept 
“ from sight and communication with the tour group.” 
Thus, the tourists never saw normal living conditions 
at the jail.

(d) Reporters were not permitted to take cameras with 
them. The sterile and unrealistic photos proffered for



6

sale by petitioner gave only an artificial idea of the real­
ity of jail life.

(e) Finally, offering only a periodic tour made it im­
possible for the press to cover a specific event or follow 
a developing news story. News events are evanescent. 
They do not coincide with the Sheriff’s schedule of tours. 
Limitation to a scheduled tour made it impossible to cover 
an escape, a fire, a suicide or other newsworthy event 
as it happened.3 It also made it possible for the jail 
to be “ scrubbed up” specially for the tour, as was done 
for a press tour in the past.

3. Press access to other jails and prisons.
The evidence before the district court showed that other 

jails and prisons have no limitations of the kind imposed 
by petitioner Houchins, that they routinely provide free 
press access and that such access creates no problems 
whatever:

a. San Francisco County.

The Sheriff of San Francisco operates four jails. He 
routinely authorizes reporters to enter and cover stories 
in his jails. The reporters are permitted to bring cameras

8 The Sheriff’s petition for certiorari (p. 9) asserts that re­
porters may “ now” have access to cover “ special events, such 
as fires or escapes.” Nothing in the record supports this asser­
tion. If the assertion is true, it raises a question of what the 
Sheriff considers a “ special event” and whether his practice “ op­
erates in a neutral fashion, without regard to the content of the 
expression.” Pell v. Procunier, 417 U.S. 817, 828 (1974). For 
example, information about a recent riot at the jail did not leak 
out to the public until nearly two weeks after the event. See 
the Appendix to this Brief. If in fact access for spot news events 
does not depend on the content of the news, this should be brought 
to the attention of the trial court before final judgment, not as­
serted without record support to this Court.



7

and tape recorders with them. The Sheriff also permits 
interviews of both inmates and staff. Never, on any oc­
casion, lias this created any security problems or any dis­
ruptions.4

Further, the San Francisco Sheriff advanced affirma­
tive reasons, from the point of view of a correctional ad­
ministrator, for admitting the press to the jails. He tes­
tified that jails “ routinely end up being places that are 
extraordinarily and most unnecessarily abusive to people” 
and that media exposure of conditions serves to enhance 
public awareness and thus motivate county government 
to provide adequate funds for more decent facilities.

b. Other County jails.
The evidence showed that KQED and other stations 

have done stories on the premises of several other county 
jails, without any difficulties or disruptions of any kind.

c. San Quentin.

San Quentin’s Public Information Officer testified about 
the press policy of the California Department of Correc­
tions as implemented at San Quentin. The Department 
recognizes a citizen’s “ right to know,” and provides for 
completely open media access to the prisons, with re­
porters allowed to bring cameras and tape recorders, 
to view all areas of the prison, to talk with prisoners 
generally and to interview prisoners of their choice.

The official testified that arrangements for the press to 
come to the institution are very simple, and can be made

4 There is no record support whatever for the petitioner’s as­
sertion that the Ninth Circuit’s decision will have “ national im­
pact” because jailers everywhere will be required “ to do more” 
and that this will be a “ burden” for them. To the contrary, the 
only evidence of practices in other jails is that press access is 
freely allowed and that this creates no problems for the jailers.



8

the same day of the request. San Quentin has experienced 
no disruptions or security problems whatever because of 
press access. The press could of course be excluded by 
the warden if any security problem developed.®

d. National policy
The district court received in evidence the relevant 

standards promulgated by the National Advisory Com­
mission on Criminal Justice Standards and Goals. The 
Commission was appointed by the LEAA to formulate 
standards for institutions henefitting from LEAA grants. 
Petitioner Houchins has received funds from LEAA, in­
cluding a grant for the reconstruction of the jail, but he 
does not comply with the standards. Standard 2.17 flatly 
provides that:

“ Representatives of the media should he allowed ac­
cess to all correctional facilities for reporting items 
of public interest consistent with the preservation of 
offenders’ privacy.”

Current Federal Bureau of Prisons policy is expressed in 
the Policy Statement that the Ninth Circuit appended to 
its opinion in this case. The Bureau encourages news 
media access to all prisons “ to insure a better informed 
public.” Reporters may freely use cameras, bring tape 
recorders, conduct interviews, etc.* 6

6 In addition to providing open news media access, San Quentin 
has frequent tours for the general public, during which inmates 
are regularly encountered. The record here shows that the Cali­
fornia authorities have completely abandoned the press restric­
tion they so vigorously and successfully defended in Pell v. Pro- 
cunier, 417 U.S. 817 (1974).

6 As the Policy Statement indicates, the Bureau has completely 
abandoned the press restriction it so vigorously and successfully 
defended in Saxbe v. Washington Post, 417 U.S. 848 (1974).



9

4. Experience of other news reporters.
The evidence before the district court also included un­

successful attempts by other news reporters to cover 
stories at the Alameda County jail. One wished to gain 
access to the jail to cover stories of reported gang rapes 
and suicide. He spoke personally with Sheriff Houehins, 
who excluded him from the jail, stating only that it was 
his “ policy” not to allow any press entry. The reporter 
also tried to get on the first guided tour of the jail in 
July, 1975. He promptly signed up but was removed 
from the list when someone in the Sheriff’s office decided 
that more members of the public and fewer members of the 
press would be permitted to go.

Reasons Why Certiorari Should Not Be Granted.
I .  T h e  C ourt  sh o u ld  N ot E xercise I ts C ertiorari J u ­

risd ictio n  to R ev iew  an  E n tir ely  R easonable P r e l im ­
inary  I n ju n c t io n  Granted  in  t h e  E xercise  oe t h e  
T ria l  C o u r t ’s D isc r e t io n .

Finding that the requirements for a preliminary injunc­
tion were met, the district court granted an order that 
was carefully tailored to protect the legitimate interests 
of all parties. The order preliminarily enjoined the Sher­
iff from excluding the press “ as a matter of general 
policy.” The order directed that reporters be given ac­
cess “ at reasonable times and hours” for the purpose of 
providing full and accurate news coverage of jail condi­
tions. But, deferring to the Sheriff’s administrative dis­
cretion, the court provided that “ the specific methods of 
implementing” press access were to be “ determined by 
Sheriff Houehins.” Further, the order expressly stated 
that the Sheriff may “ in his discretion” exclude all news



10

access “ when tensions in the jail make such media access 
dangerous.”

In short, the order is a model of restraint. It does not 
grant the press total and instant access on demand. Rather, 
the Sheriff may make reasonable time, place and manner 
restrictions and may even, in his discretion, deny all ac­
cess when he believes that jail tensions would make ac­
cess dangerous. Moreover, the district court’s direction 
that “ the specific methods of implementing” access are 
left to the Sheriff permits petitioner to deal with any ac­
tual administrative problem. The district court granted 
the Sheriff a temporary stay based on his representation 
that specific procedures would be developed to cover such 
matters as searches of reporters and their equipment, 
proper identification of press representatives, instructions 
as to items that could not be photographed, consent forms 
for interviews, etc.

The Ninth Circuit unanimously upheld this preliminary 
order. A preliminary injunction is of course a matter of 
the trial court’s discretion.7 The Sheriff has presented 
no reason why this Court should disturb the considered 
exercise of discretion by the courts below.

The preliminary injunction was based on a finding by 
the district court that respondents — the station and mem­
bers of the public — would suffer irreparable injury if 
preliminary relief were not granted and that the Sheriff 
had failed to show that such relief would result in harm 
to his interests. The most important factor, of course,

7 See, e.g., Deckert v. Independent Shares Corp., 311 U.S. 282, 
290 (1940); Anheuser-Busch, Inc. v. Teamsters Local No. 633, 
511 F. 2d 1097 (1st Cir.), cert, denied 423 U.S. 875 (1975) ; K-2 Ski 
Co. v. Head Ski Co., 467 F. 2d 1087 (9th Cir. 1972); 11 Wright & 
Miller, Federal Practice and Procedure, Civil, § 2948 (1973).



11

is the irreparable injury suffered by the exclusion of 
KQED from covering news stories at the jail.8

A further reason for not disturbing the trial court’s 
preliminary order is that it provides an excellent oppor­
tunity for definitively resolving all problems relating to 
press access before this litigation goes to final judgment.9 
Thus, we believe that implementation of the reasonable 
access provided by the district court’s order will demon­
strate even to the Sheriff that his opposition is not well- 
founded. He may then decide voluntarily to change his 
policy. During the litigation he may also adjust the pro­
cedural details of access. Conversely, if actual problems 
are encountered by the Sheriff during the pendency of 
this case, that would be a reason for the district court 
to deny or limit permanent relief.

8 Mr. Justice Blackmun has reasoned, in considering a restric­
tion on reporting by the news media, that First Amendment in­
terests are infringed each day the restriction continues:

“ The suppressed information grows older. Other events 
crowd upon it. To this extent, any First Amendment in­
fringement that occurs with each passing day is irreparable.” 
Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975). 
Cf. Procunier v. Martinez, 416 U.S. 396, 404 (1974) (judicial 
abstention imposes “ high cost” when First Amendment in­
terests at stake).

9 Contrary to Mr. Justice Rehnquist’s observation on the stay 
application that the order did not appear to be “ preliminary” to 
further proceedings that might modify the injunction, there 
are indeed substantial matters that must be resolved in the trial 
court before any final judgment is entered. For example, as men­
tioned in note 3, supra, the question of access for spot news cov­
erage must be examined to determine whether censorship of con­
tent must be enjoined. Further, as suggested by the Ninth Cir­
cuit, “ to determine the questions of infringement of the correla­
tive rights of the public and the media and the means by which 
these rights are to be implemented,” the trial court should con­
sider in detail how access is handled in other prisons.



12

In sum, this is not the occasion for plenary review by 
this Court. Any such review should await a final judg­
ment and a complete record.

I I .  T h e  P r elim in a r y  Order is  N ot I n c o n sist e n t  w it h

P e l l  v . P ro c u n ier  and  S axbe v . W a sh in g t o n  P ost.

The Sheriff’s basis for seeking certiorari is his conten­
tion that the injunction is in conflict with Pell v. Procu­
nier, 417 U.S. 817, 834 (1974) and Saxbe v. Washington 
Post, 417 U.S. 848 (1974). He argues that, so long as he 
mechanistically equates KQED’s rights with those of the 
public in general — wholly excluding both or limiting 
both to guided tours — Pell and Saxbe provide him with 
a complete defense. This wooden argument was properly 
rejected by the lower courts.

The sole restriction on press access upheld by Pell and 
Saxbe was a prison rule against interviewing inmates 
specifically singled out by the press. The Court upheld 
this limited restriction because there was evidence in both 
cases that the restriction was necessary to avoid security 
problems caused by undue attention to “ big wheels” who 
gained notoriety and influence over other prisoners. How­
ever, Pell and Saxbe did not authorize any press restric­
tions like those maintained by the Sheriff here. Indeed, 
the Court expressly pointed out in Pell that “both the 
press and the general public are accorded full oppor­
tunities to observe prison conditions.” 417 U.S. at 830 
(emphasis added). Thus, in Pell the Court noted that 
“ newsmen are permitted to visit both the maximum and 
minimum security sections of the institutions and to stop 
and speak about any subject to any inmates whom they 
might encounter.” 417 U.S. at 830. In addition to tours,



13

newsmen were permitted “ to enter the prisons to inter­
view” randomly selected inmates. The same was true in 
Saxbe. There, the Conrt noted that “ members of the 
press are accorded substantial access to the federal pris­
ons in order to observe and report the conditions they 
find there.” 417 U.S. at 847. In addition, newsmen were 
permitted to tour and photograph any prison facilities 
and interview inmates they encountered. Id. at 847, n.5.

Thus, the only restriction upheld by Pell and Saxbe 
was the rule against the press singling out specific in­
mates for interviews, and this narrow rule was upheld 
only on a record showing that the press in fact had sub­
stantial access to the prisons. As the district court noted 
in the present case, the press access actually permitted 
by the institutions in Pell and Saxbe is precisely the ac­
cess sought by KQED. Absent a showing that such access 
would interfere with a valid correctional interest, the 
courts below properly found that Pell and Saxbe do not 
preclude relief here.

The trial court found that the Sheriff’s policy disables 
KQED from gathering nonconfidential information on 
matters of public interest. The court also found that rea­
sonable access to the jail would not endanger security 
or result in any harm to petitioner’s legitimate interests. 
Since the Sheriff’s restrictions were found to be “ greater 
than is necessary or essential to the protection of the par­
ticular governmental interest involved,” the preliminary 
order was entirely appropriate. See Procunier v. Mar­
tinez, 416 U.S. 396, 419 (1974); United States v. O’Brien, 
391 U.S. 367, 377 (1968).



14

Conclusion.
For the reasons stated, the petition for certiorari should 

he denied.

Respectfully submitted,
WILLIAM BENNETT TURNER, 

Pound 502,
Cambridge, Massachusetts 02138, 

JACK GREENBERG,
JAMES M. NABRIT, III,
STANLEY A. BASS,

10 Columbus Circle,
New York, New York 10019, 

ANN BRICK,
Suite 2900,

650 California Street,
San Francisco, California 94108.

Attorneys for Respondents.



15

APPENDIX

x u m tttt
112th Year No. 215 ■ft 777-2424 WEDNESDA ,̂ FEBRUARY 16. 1977 Daily 20c CITY EDITION

Riot at Santa Rita:
26 women locked up

Battle blamed 
on ‘hardcore 
troublemakers’

B y D oa M artin ez

Twenty-six women are in Santa 
Rita Prison’s maximum security 
Greystone section as a result of a 
disturbance Feb. 6. Details were 
learned only today. ~~

Lt. George Vien, night com­
mander at the Alameda County 
facility, said all privileges for Santa 
Rita’s 140 women were still revoked 
as a result of the melee.

‘They’re going to have to earn 
back the privileges,” Vien said.

He said the privileges included
commissary, movies, visiting and 
television.

Vien said the women in Grey- 
stone are hardcore troublemakers 
and are being housed in what 
usually is the men’s section. Board 
partitions and a 24-hour security 
watch by a squad of matrons, 
isolate the women from male pris­
oners, he said

Vien said the women in Grey- 
stone include both sentenced and 
unsentenced prisoners. Their offen­
ses include armed robbery, assault 
with a deadly weapon, heroin pos­
session and possession of heroin for 
sale, auto theft and burglary.

The uprising a week ago Sun­
day caused $1,000 in damage and 
involved 53 women and a number 
of jailers. It was sparked when an 
inmate and a deputy started argu­
ing in the mess hall.

Sprinklers were ripped from 
the ceilings, door panels kicked out 
and lockers overturned.

“W e originally moved all 53 to
Greystone where they were locked 
in a dayroom,” he said. “Since then, 
those prisoners who felt ready to 
return to their regular quarters 
have been screened and put back in 
their regular cells.”

Despite a few skirmishes, the 
situation is pretty much normal, 
Vien said, and male prisoners are 
helping to keep the situation cool 
by yelling “shut up” when the 
women make noise.