Houchins v. KQED, Inc. Brief of the National Newspaper Association et al.

    IN THE

Supreme Court of the United States
OCTOBER TERM 1977

No. 76-1310

THOMAS L. HOUCHINS,
Petitioner,

v.

KQED, INC., et al,
Respondents.

ON A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL NEWSPAPER 
ASSOCIATION, THE ARIZONA NEWSPAPERS 

ASSOCIATION, THE PENNSYLVANIA NEWSPAPER 
PUBLISHERS ASSOCIATION, THE 

SOUTH DAKOTA PRESS ASSOCIATION

As Amici Curiae in Support 
of Respondents

CHRISTOPHER B. FAGER 
Fager & Singer 
1721 DeSales Street, N.W. 
Washington, D.C. 20036

W. TERRY MAGUTRE 
WILLIAM G. MULLEN 
JAMES R. CREGAN 
PATRICIA GALLAGHER

S ep tem b er 16, 1977 Attorneys for Amici Curiae

THE CASILLAS PRESS, 1NC.-1717 K Street, N. W.-Washington. D. C.-223-1220



(0

INDEX

Page

INTEREST OF AMICI C U R IA E ...............................................  2

STATEMENT OF THE C A S E ....................................................  2

ARGUMENT

I. THE FIRST AND FOURTEENTH AMENDMENTS
PROTECT THE RIGHT OF THE NEWS MEDIA, AS 
REPRESENTATIVES OF THE PUBLIC, TO OBSERVE 
FIRST-HAND AND REPORT ON THE CONDITIONS 
AT PRISONS AND OTHER PUBLIC INSTITUTIONS, 
ESPECIALLY WHERE THERE IS INVOLUNTARY 
INCARCERATION OF INDIVIDUALS..........................  4

II. PETITIONER’S UNWRITTEN POLICY AND MECH­
ANISM FOR NEWS MEDIA ACCESS TO THE SANTA 
RITA JAIL VIOLATE THE MEDIA’S RIGHT TO 
GATHER AND DISSEMINATE NEWS AND THE 
PUBLIC’S RIGHT TO RECEIVE INFORMATION 
ABOUT THE CONDITION OF PUBLIC INSTITU­
TIONS .................................................................................... 7

III. LOCAL OFFICIALS MAY EMPLOY REASONABLE 
TIME, PLACE AND MANNER RESTRICTIONS,
BUT MAY NOT USE THESE RESTRICTIONS TO 
PREVENT NEWS MEDIA OBSERVATION AND 
REPORTING ON CIRCUMSTANCES AND CON­
DITIONS IN PUBLIC INSTITUTIONS ABOUT 
WHICH THE PUBLIC IS ENTITLED TO BE IN­
FORMED .............................................................................. 11

CONCLUSION 13



TABLE OF AUTHORITIES

Cases:

Branzburg v. Hayes, 408 U.S. 665 (1972) . . . .  5, 6

Brenneman v. Madigan, 343 F. Supp. 128 (N.D.
Cal. 1972) ..............................................................  3

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1 9 7 5 )............................................................................  5

Cullen v. Grove Press, Inc., 276 F. Supp. 727
(S.D. N.Y. 1 9 6 7 )..........................................................  6

Estes v. Texas, 381 U.S. 532 ( 1 9 6 5 ) .............................  11

Morales v. Schmidt, 489 F.2d 1335 (7th Cir. ),
mod. en banc, 494 F.2d 85 (1974) ...........................  6

New York Times Co. v. Sullivan, 376 U.S. 254
(1 9 6 4 )............................................................................  5

Nitzberg v. Parks, 525 F.2d 378 (4th Cir. 1975) . . .  7

Pell v. Procunier, 417 U.S. 817 ( 1 9 7 4 ) ..................  9, 10

Phillips v. Evening Star Newspaper Co., 2 Med. L.
Rptr. 2201, 105 Daily Wash. L. Rptr. 1425
(District of Columbia Superior Court 1977) . . .  8

Saxbe v. The Washington Post Co., 417 U.S. 843
(1 9 7 4 )............................................................................  10

Time, Inc. v. Firestone, 424 U.S. 448 (1976) . . . .  8

United States v. Abney, 534 F.2d 984 (D.C. Cir.
1 9 7 6 ) ..............................................................   7

Wiseman et al. v. Massachusetts et al., pet. for cert, 
denied, 398 U.S. 960 ( 1 9 7 0 ) ....................................  7

(ii)



Page

Constitution:

U.S. Const., Amend. I ................................................. passim

U.S. Const., Amend. X I V ............................................. 4

Other Authorities:

American Society of Newspaper Editors, The
Bulletin, Nov./Dec. 1975 ............................................. 5

Amnesty International, Report on Torture,
World Survey o f  Torture (Duckworth & Co.,
London 1973)...............................................................  7

Publishers’ Auxiliary, November 25, 1976 ..................  9

(iii)



IN THE

Supreme Court of the United States
OCTOBER TERM 1977

No. 76-1310

THOMAS L. HOUCHINS,
Petitioner,

v.

KQED, INC., et al.,
Respondents.

ON A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL NEWSPAPER 
ASSOCIATION, THE ARIZONA NEWSPAPERS 

ASSOCIATION, THE PENNSYLVANIA NEWSPAPER 
PUBLISHERS ASSOCIATION, THE 

SOUTH DAKOTA PRESS ASSOCIATION

The National Newspaper Association — joined by the Ari­
zona Newspapers Association, the Pennsylvania Newspaper 
Publishers Association and the South Dakota Press Associa­
tion — respectfully submit this brief as amici curiae in sup­
port of Respondents KQED, Inc., et al., and urge affirmance 
of the decision of the United States Court of Appeals for 
the Ninth Circuit, KQED, Inc., et al. v. Houchins, 546 F.2d 
284, 2 Med.L.Rptr. 1115 (9th Cir. 1976).

Submitted with this brief, pursuant to Rule 42(2) of this 
Court, are the written consents of the parties for the filing 
of this brief.



2

INTEREST OF THE AMICI CURIAE

The National Newspaper Association (NNA) is a 93-year- 
old national association of more than 6,000 newspapers (950 
dailies and 5,300 weeklies). NNA members include news­
papers of general circulation in the Alameda County area. 
The named state press associations represent members who 
publish newspapers in their respective states.

NNA represents its members in national matters affecting 
business and professional aspects of newspaper publishing. 
The members range from small weekly newspapers to large 
metropolitan dailies, covering a wide philosophical and poli­
tical spectrum. The great bulk of the membership consists 
of rural and suburban weeklies and small city dailies.

Member newspapers believe that they have a constitutional 
obligation to report on the functioning of local government 
and the stewardship of local public officials — especially as 
that stewardship concerns the condition and operation of 
publicly-financed institutions engaged in the involuntary in­
carceration of individuals. It is the view of these members 
that unreasonable restrictions on the ability to gather news 
about these institutions are abhorrent to the proper conduct 
of democratic government.

STATEMENT OF THE CASE

Amici curiae adopt Respondent’s statement of the case. 
The chief facts are as follows: In March 1975, non-commer­
cial television station KQED reported the suicide of a pri­
soner in Petitioner Sheriffs Alameda County Jail at Santa 
Rita, based on reports which the station was unable to ve­
rify fully. KQED also telecast statements by a jail psychia­
trist that conditions at the facility were partly responsible 
for prisoners’ emotional problems. A KQED reporter then



3

asked Petitioner for permission to see and photograph the 
jail. Jail officials denied the request and Petitioner cited 
his unwritten “policy” that the news media could not en­
ter the jail. Another reporter was also unable to gain en­
try to cover stories of alleged gang rapes and poor condi­
tions.

KQED brought suit in the United States District Court 
for the Northern District of California seeking injunctive 
relief to prevent the Petitioner from barring KQED repor­
ters from the jail facility. The Court received affidavits 
and conducted an evidentiary hearing. The evidence showed 
that subsequent to the filing of the suit the Petitioner had 
inaugurated a series of public tours. Representatives of the 
press could attend a tour, but the evidence showed that 
each tour had a limit of 25 persons; that spaces were avail­
able on a first come, first served basis; that within one week 
of the announcement of the tours there were no spaces re­
maining for the six in 1975; that the tours did not include 
the Little Greystone barracks used to house pre-trial detainees; 
that the tours did not include the “disciplinary cells” in the 
Greystone facility;1 that participants in the tours could not 
speak with any inmates encountered during the tours; that 
the participants could not take photographs; that the photo­
graphs offered for sale by the Petitioner did not fairly de­
pict inmate life; that there was a ban on tape recorders; 
that the inmates were not generally visible to participants; 
that the tours were on a “schedule only” basis and never 
conducted at any time on request; and that in reality the 
participants never saw normal conditions at the jail.

1 Three years before the facts in this case arose, a United States 
District Court found conditions of confinement at Petitioner’s Grey­
stone facility to be “cruel and unusual.” Brenneman v. Madiagn, 
343 F.Supp. 128, 132-33 (N.D. Cal. 1972).



4

Petitioner presented “testimony illustrating in detail the 
route of the tour, and the interiors and exteriors of the 
buildings visited, including descriptions and photographs of 
the foregoing. Plans of the facility were admitted in evi­
dence to illustrate the course of the tour . . Petitioner’s 
Opening Brief at 8. The District Court concluded that the 
Petitioner’s policy was inadequate.

The Ninth Circuit upheld the granting of a preliminary 
injunction requiring Petitioner to grant reasonable press ac­
cess to the jail. The injunction was conditioned on the 
Sheriff’s authority to restrict media access during circum­
stances at the jail which would make such access dangerous.

I. THE FIRST AND FOURTEENTH AMENDMENTS PRO­
TECT THE RIGHT OF THE NEWS MEDIA, AS REPRE­
SENTATIVES OF THE PUBLIC, TO OBSERVE FIRST­
HAND AND REPORT ON THE CONDITIONS AT PRI­
SONS AND OTHER PUBLIC INSTITUTIONS, ESPE­
CIALLY THOSE WHERE THERE IS INVOLUNTARY 
INCARCERATION OF INDIVIDUALS.

Amici contend that the fundamental issue presented by 
this case is the right of the news media — and in turn the 
public — to see the conditions existing in institutions main­
tained by public authority. Amici submit that the contested 
“policy” of Petitioner Sheriff Houchins deprives the news 
media and the public of valuable information in violation of 
the First and Fourteenth Amendments to the Constitution 
of the United States.

The daily conduct of American government at the local, 
state and federal levels takes place largely within institutional 
environments. Inside the walls of these facilities government 
bears the responsibility for prisoners, medical patients, juve­
niles, the elderly and the infirm, and the poor. Yet, it is



5

the public which ultimately bears the responsibility for the 
condition and operation of these publicly-financed institu­
tions.

Since private individuals cannot generally exercise this re­
sponsibility on their own, they necessarily depend on the 
news media for information:

[I] n a society in which each individual has but 
limited resources with which to observe at first 
hand the operations of his government, he relies 
necessarily upon the press to bring to him in 
convenient form the facts of those operations.
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
491 (1975).

The news media must be able to enter and view public insti­
tutions if they are to fulfill their obligation to bring “an 
independent scrutiny to bear on the forces of power in so­
ciety, including the conduct of official power at all levels of 
government.” A Statement of Principles, American Society 
of Newspaper Editors, The Bulletin, Nov./Dec. 1975 at 23. 
News concerning public institutions is an essential part of 
our “profound national commitment” that the public requires 
a free flow of information on the conduct of government by 
public officials. New York Times Co. v. Sullivan, 376 U.S. 
254, 270 (1964). After all, public officials administer these 
institutions and it is these officials who are ultimately re­
sponsible to the citizenry. Close scrutiny of public facilities 
therefore, is nothing more than evaluation of the stewardship 
of officials charged with vital public duties.

This Court has recognized that the First Amendment em­
bodies protection for activities associated with newsgather­
ing, that “news gathering is not without its First Amend­
ment protections . . . Branzburg v. Hayes, 408 U.S. 665, 
707 (1972). For, “without some protection for seeking out



6

the news, freedom of the press could be eviscerated.” Id. 
at 681. Ultimately, the failure to protect the right to gather 
news in public institutions could lead to the failure of the 
people to be able to make informed judgments about the con­
duct of their government.

Nowhere is it more important to provide the public with 
information about its institutions than in those situations in­
volving involuntary incarceration. “ [F]rom the standpoint 
of society’s right to know what is happening within a penal 
institution, it is perfectly clear that traditional First Amend­
ment interests are at stake.” Morales v. Schmidt, 489 F.2d 
1335, 1346 (7th Cir.) (Stevens, Circuit Judge, dissenting), 
mod. en banc, 494 F.2d 85 (1974). For only by obtaining 
information on these conditions may the public act to cor­
rect abuse or institute change.

The conditions in public institutions such as 
Bridgewater for the care of the criminally insane, 
including the physical facilities . . .  are matters 
which are of great interest to the public generally.
Such public interest is both legitimate and healthy.
Quite aside from the fact that substantial sums 
of taxpayers’ money are spent annually on such 
institutions, there is the necessity for keeping the 
public informed as a means of developing respon­
sible suggestions for improvement and of avoiding 
abuse of inmates who for the most part are unable 
intelligently to voice any effective suggestions or 
protests. Cullen v. Grove Press, Inc., 276 F. Supp.
727, 728-29 (S.D. N.Y. 1967).

The secrecy which Petitioner apparently wishes to impose 
on the Santa Rita jail offends basic notions of the role of 
a free press in an open society. It is precisely in those situa­



7

tions where officials seek to deny access that the possibility 
of abusive conditions is the greatest.2

It is important that conditions in public institu­
tions should not be cloaked in secrecy, lest citi­
zens may disclaim responsibility for the treatment 
that their representative government affords those 
in its care. Wiseman et al, v. Massachusetts et al., 
pet. for cert, denied, 398 U.S. 960, 962 (1970) 
(Harlan, J., dissenting).

II. PETITIONER’S UNWRITTEN POLICY AND MECHAN­
ISM FOR NEWS MEDIA ACCESS TO THE SANTA RITA 
JAIL VIOLATE THE MEDIA’S RIGHT TO GATHER 
AND DISSEMINATE NEWS AND THE PUBLIC’S RIGHT 
TO RECEIVE INFORMATION ABOUT THE CONDI­
TIONS OF PUBLIC INSTITUTIONS.

Petitioner’s unwritten “policy”3 prohibits news media en­
try to the Santa Rita jail other than as a participant in a 
pre-scheduled tour — a tour the District Court found inade­
quate for newsgathering. The result of Petitioner’s policy 
is that he is able to control completely what the public 
knows about his stewardship of the facility.

2
~ Cf. Amnesty International, Report on Torture, World Survey of 

Torture 109 (Duckworth & Co., London 1973).
3 Amici allege that a serious question exists as to whether Peti­

tioner may constitutionally restrict First Amendment rights without 
reducing his “policy” to writing. See United States v. Abney, 534 
F.2d 984 (D.C. Cir. 1976) (Conviction for overnight sleeping in fed­
eral park, as part of protest, violates First Amendment where officials 
possess discretion to allow such sleeping but no written standards 
guide that discretion); Nitzberg v. Parks, 525 F.2d 378 (4th Cir.
1975) (Restrictions on freedom of expression of high school stu­
dents by administrators may only be accomplished through precise 
written guidelines).



8

Petitioner attaches great significance to the availability of 
alternative sources of information instead of news media en­
try into the jail. This reliance is wrong for none of the al­
ternatives allows news personnel to verify through first-hand 
accounts reports they might receive from an inmate’s letter, 
for example. Indeed, this case began because of unverified 
reports of poor conditions in a portion of the facility still 
out-of-bounds to this date to public and press. Moreover, 
this Court itself has emphasized the importance of verifica­
tion in news reporting. Time, Inc. v. Firestone, 424 U.S. 
448 (1976); see also, Phillips v. Evening Star Newspaper Co., 
2 Med.L.Reptr. 2201, 105 Daily Wash. L.Reptr. 1425 (Dis­
trict of Columbia Superior Court 1977) (Newspaper liable 
for publication of false information received directly from 
police “hot line”). Simply stated in the context of this 
case, a reporter cannot be certain about the true facts exist­
ing in a prison by sitting on the doorstep. A reporter would 
be irresponsible if a story were approached in that way and 
it would be no less irresponsible for a reporter to rely to­
tally on the Sheriff for a report on conditions or facilities 
at the jail.4

4 The following story vividly highlights the shortcomings of total 
reliance on prison personnel in reporting on penal institutions:

In suburban Denver, the Sentinel weeklies ran a story 
written by Dick Sides about brutal jail treatment.

“Prisoners were beaten, .mutilated and raped in the 
Adams County Jail last spring and early summer,” the 
feature began.

Other inmates did the punishing, at least twice setting 
up kangaroo courts, declaring fellow inmates guilty of the 
crimes for which they were jailed, then savagely punishing 
them as sentences, Sides wrote.

He based his article on a study conducted by proba­
tion officers and an interview with an undersheriff.

(continued)



9

Amici view the access accorded the media by the public 
tours to be a patently unreasonable limitation on the media’s 
right to gather news and the public’s right to information 
about the jail. In the words of Judge Hufstedler:

The media mission however, is different in degree, 
though not in kind, from the display to a tour 
group. The newsmen’s function is to gather, to 
collate, and to transmit to a wide public audience 
all of the information which the public is entitled 
to know about prison conditions. A private tour 
group might have similar or better ability to gather 
information than newsmen, but it would be rare 
that the combination of training and the means 
of transmission enjoyed by the news media would 
be found in a tour group. An adequate view of 
prison conditions is unlikely if the observer is con­
fined to the areas of prisons and the times of vi­
sitation that are appropriate for conducted tours.
KQED, Inc. v. Houchins, 546 F.2d at 296 (Huf­
stedler, Circuit Judge, concurring).

Without the ability to employ photographic equipment, 
barred from important sections of the facility, and depen­
dent upon the Sheriff to schedule a tour, it is obvious that 
the Sheriffs policy totally frustrates the media’s access to 
the jail for the purpose of gathering and disseminating news.

It is for this reason that petitioner may not place reliance 
on Pell v. Procunier, 417 U.S. 817 (1974), or its companion

^ (Continued)
The guards never discovered any of the reported inci­

dents because prisoners acted as lookouts and “ the code 
of the jail is ‘Keep your mouth shut,’ ” said the county 
undersheriff.
Publishers’ Auxiliary, November 25, 1976, at 12.



10

case Saxbe v. The Washington Post Co., 417 U.S. 843 (1974). 
Both Pell (California state prison system) and Saxbe (Federal 
Bureau of Prisons) approved flat bans on face-to-face inter­
views by the news media of inmates selected by the media.
In ruling on claims of constitutional injury raised by the 
news media, the Court used language which suggested meas­
urement of the media’s right of access co-extensively with 
the public’s. 417 U.S. at 834-35. However, in both Pell 
and Saxbe, “ [ejxcept for the limitation . . .  on face-to-face 
press-inmate interviews, members of the press are accorded 
substantial access to the federal prisons in order to observe 
and report the conditions they find there.” Saxbe at 847.
In Saxbe, members of the media could tour the federal pri­
sons, photograph any prison facilities, interview inmates en­
countered on such inspections, and even interview randomly 
selected groups of inmates. Id. at 847-48. In Pell, Califor­
nia state prison regulations allowed reporters to visit maxi­
mum security sections of the institutions, to stop and speak 
with inmates, and to have access to “all parts of the institu­
tions. . . . ” Pell at 830.

It was these facts which compelled this Court to observe: 
“We note at the outset that this regulation [prohibiting face- 
to-face interviews upon request] is not part of an attempt 
by the State to conceal the conditions in its prisons or to 
frustrate the press’ investigation and reporting of those con­
ditions.” Pell at 830. Similarly, in Saxbe, the Court found 
no “attempt by the Federal Bureau of Prisons to conceal 
from the public the conditions prevailing in federal prisons.” 
Saxbe at 848. In the present case, a markedly different situa­
tion is apparent because Petitioner claims total authority to 
bar media access on any basis whatsoever. In fact, the result 
has been a near total restriction on the flow of news from 
the place where inmates are incarcerated. Thus, unlike the 
situation in Pell and Saxbe, the Court in this case is asked



11

by administrators to authorize a news blackout. Access to 
the prison as a place must therefore be measured by a dif­
ferent standard, and a different factual showing must be 
made, than access to individual inmates for the purpose of 
obtaining an interview.

The inevitable conclusion here is that Petitioner has frus­
trated media access to a public institution to such an extent 
as to cause serious First Amendment injury to the media 
and the public for whom they report.

III. LOCAL OFFICIALS MAY EMPLOY REASONABLE TIME,
PLACE AND MANNER RESTRICTIONS BUT MAY NOT 
USE THESE RESTRICTIONS TO PREVENT NEWS ME­
DIA OBSERVATION AND REPORTING ON CIRCUM­
STANCES AND CONDITIONS IN PUBLIC INSTITUTIONS 
ABOUT WHICH THE PUBLIC IS ENTITLED TO BE IN­
FORMED.

Without doubt, a county ordinance prohibiting news media 
publication of any and all information concerning conditions 
at the Santa Rita jail would be unconstitutional. Just as 
surely, local regulations which operate to preclude effectively 
that reporting may not stand.

The fundamental flaw in Petitioner’s unwritten policy is 
that it puts the burden on the news media to demonstrate 
reasons for admittance when as a matter of law the burden 
to justify exclusion must rest with the government. “The 
idea of imposing upon any medium of communications the 
burden of justifying its presence is contrary to where I had 
always thought the presumption must lie in the area of First 
Amendment freedoms.” Estes v. Texas, 381 U.S. 532, 615 
(1965) (Stewart, J., dissenting).

The Petitioner has substantial discretion to impose condi­
tions upon the entry of news media representatives to the



12

jail facility. But this authority to control the time, place 
and manner of access may never, as it has in the instant 
case frustrate meaningful access to news. Amici endorse 
the overall standard articulated by Judge Hufstedler in the 
decision below:

[T]he public’s right to knowledge about the con­
ditions of prisons and prisoners is very extensive. 
Information should not be curtailed except to the 
extent reasonably necessary to shield the prisoners’ 
small store of personal privacy, to protect the phy­
sical security of the prison, the prisoners, and the 
prison personnel, and to allow prison personnel 
enough privacy and administrative control to per­
mit them effectively to perform their duties. As 
the eyes and ears of the public, newsmen are en­
titled to see and to hear everything within the 
institution about which the general public is en­
titled to be informed. 546 F.2d at 295-96.

Only upon a showing of actual danger to the security of the 
institution, or the safety of the inmates, may the Sheriff 
deny access to the press. Absent such a showing, the me­
dia must have access to the jail.

In order for the community press to fulfill its role as 
watchdog of local government, reporters and photographers 
must be able to enter prisons and other publicly-financed 
institutions, restricted only by rules honoring significant 
competing state interests and subject to reasonable time, 
place and manner regulations. A “no press access” or un­
reasonably “limited press access” policy is effectively a “no 
public access” rule. It is a rule which is unacceptable in 
our democratic system.



13

CONCLUSION

The freedom of the press to enter, and report on the 
operation of, publicly-financed institutions — and especially 
places where there is involuntary incarceration — is funda­
mental to our Constitutional scheme of government. The 
First Amendment recognizes that the press has a special role 
to perform as the public’s representative in reviewing the 
operation of government institutions. Indeed, in this case, 
enhanced press access to the Santa Rita jail would provide 
the governed of Alameda County with the only reasonable 
means of exercising their democratic responsibility to know 
how their elected government carries out its duties. Amici 
urge this Court to affirm the decision of the Court of Ap­
peals.

Respectfully submitted,

CHRISTOPHER B. FAGER 
Fager & Singer

1721 DeSales Street N.W. 
Washington, D.C. 20036

W. TERRY MAGUIRE 
WILLIAM G. MULLEN 
JAMES R. CREGAN 
PATRICIA GALLAGHER

Attorneys for Amici Curiae
The National Newspaper Association 
The Arizona Newspapers Association 
The Pennsylvania Newspaper Publishers 

Association
The South Dakota Press Association