Houchins v. KQED, Inc. Brief for Respondents KQED

    IN THE

ufxtmt Court of iljo Pmtob ntes
OCTOBER TERM, 1977.

No. 76-1310

THOMAS L. HOUCHINS,
Petitioner,

---v.---

K Q ED , IN C., et a l,
Respondents.

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

BRIEF FOR RESPONDENTS KQED, et al.

WILLIAM BENNETT TURNER
Pound 502
Cambridge, Mass. 02138

JA CK GREENBERG 
JA M ES M. NABRIT, III 
STANLEY A. BASS

10 Columbus Circle 
New York, N. Y. 10019

ANN BRICK 
Suite 2900
650 California Street 
San Francisco, CA 94108

A ttorneys for Respondents



IN THE

upveme Court of itjo jMutirfr jila ir s
OCTOBER TERM, 1977.

No. 76-1310

T H O M A S L. H O U CH IN S,
Petitioner,

K Q ED , IN C., et a t,
Respondents.

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

BRIEF FOR RESPONDENTS KQED, et al.

WILLIAM BENNETT TURNER 
Pound 502
Cambridge, Mass. 02138

JA CK GREENBERG 
JA M ES M. NABRIT, III 
STANLEY A. BASS

10 Columbus Circle 
New York, N. Y. 10019

ANN BRICK 
Suite 2900
650 California Street 
San Francisco, CA 94108

A ttorneys for Respondents



TABLE OF CONTENTS

TABLE OF AUTHORITIES. ..... iii

QUESTION PRESENTED.  .... ................... 1

STATEMENT OF THE CASE..... ............... . 2

A. Proceedings In The Courts Below..... .. 2

B. Statement Of Facts..................... 4

1. Events leading to this suit.......  4

2. The guided tours............... 7

3. Access to other jails and prisons.. 10

a. San Francisco County,________     10

b. Other County jails............   12

c. San Quentin..................... 12

d. National policy..... . 14

4. Experience of other news
reporters......................   15

5. The district court's order........  15

SUMMARY OF ARGUMENT..................     15

ARGUMENT........................   21

Introduction.......................    21

Page

-i-



Page
I. The Decision Below Is Consistent 

With Pell v. Procunier And Saxbe 
v. Washington Post...... —  ......

II. The Sheriff's Access Restrictions 
Are Far Greater Than Necessary To 
Protect Any Substantial Govern­
mental Interest...................

1. Jail Security............... .

2. Disruption by unscheduled
"tours"__...................

3. Inmate privacy and pretrial
publicity................ .

III. The District Court Properly Found 
That The Sheriff’s "Alternative 
Means of Communication" Do Not 
Serve The Same Purposes Or Meet 
The Public Need For Information 
On Jail Conditions...........

CONCLUSION.

27

43

46

48

50

53

62

- n -



TABLE OF AUTHORITIES

Cases Page

Adderly v. Florida, 385 U.S. 39 
(1966) ......... .................... 38

Bounds v. Smith, U.S. ,
97 S.Ct. 1491 (1977)...............  45

Branzburg v. Hayes, 408 U.S. 665
(1972)........................ 25, 27, 28,

34
Brenneman v. Madigan, 343 F.Supp.
128 (N.D.Cal. 1972)................  5, 23

Chicago Council of Lawyers v.
Bauer, 522 F.2d 242 (7th Cir.
1975)............................... 50

Clifton v. Superior Court, 7 Cal.
App.3d 245 (1970) .................. . 37

Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975).................24, 41

Cruz v. Beto, 405 U.S. 319 (1972)... 45

Davis v. Superior Court, 175 Cal.
App.2d 8 (1959).... ................ 37

Estelle v. Gamble, U.S. ,
97 S.Ct. 285 (1976)....... ......... 45

Estes v. Texas, 381 U.S. 532 (1965). 51

Garrett v. Estelle, F.2d ,
No. 77-1351 (5th Cir. Aug. 3, 1977). 30

-1X1-



Grosjean v. American Press Co.,
297 U.S. 233 (1936)......... ....... 26

Ingraham v. Wright, U.S. ,
97 S.Ct. 1401 (1977)..... .......... 22

Kleindienst v. Mandel, 408 U.S.
753 (1972).......................... 24, 56

Lament v. Postmaster General, 381 
U.S. 301 (1965)..... ...............  25

Lanza v. New York, 370 U.S. 139 
(1962)...... .............. 51

lee v. Washington, 390 U.S. 333 
(1968).................. ........... 45

Lewis v. Baxley, 368 F.Supp. 768 
(N.D.Ala. 1973)........ ............ 26

Linmark Associates, Inc. v.
Township of Willingboro, U.S. ,
97 S.Ct. 1614 (1977).........  44, 56

Main Road v. Aytch, 522 F.2d 1080 
(3d Cir. 1975)...................... 55

Mathis v. Appellate Dept., 28 Cal.
App.3d 1038 (1972).............. . 37

Mazzetti v. United States, 518 F.2d 
781 (10th Cir. 1975)...........    51

Mills v. Alabama, 384 U.S. 214 
(1966)..............................26

Page

-iv-



Page

Morales v. Schmidt, 489 F.2d
1335 (7th Cir. 1973)...............  24

Nebraska Press Ass'n. v. Stuart,
423 U.S.1327 (1975)........ ........ 61

Nebraska Press Ass'n. v. Stuart,
427 U.S. 539 (1976)................  50

New York Times Co. v. United
States, 403 U.S. 713 (1971)........  26

Nolan v. Fitzpatrick, 451 F.2d
545 (1st Cir. 1971)............. . 22

Pell v. Procunier, 417 U.S. 817
(1974)..........................  passim

Procunier v. Martinez, 416 U.S.
396 (1974)................   25, 36, 44,

45, 53, 56
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) ................. 24

Saxbe v. Washington Post. Co.,
417 U.S. 843 (1974),.... ........... passim

Schnell v. City of Chicago, 407
F.2d 1084 (7th Cir. 1969)..........  26

Shelton v. Tucker, 364 U.S. 479 
(1960)............... .............. 44

Sheppard v. Maxwell, 384 U.S. 333 
(1966)............... ............... 51

Shuttlesworth v. Birmingham,
394 U.S. 147 (1969)................. 36, 55

-v-



Page

Southeastern Promotions Limited
v. Conrad, 420 U.S. 546 (1975)...... 36, 55

Stanley v. Georgia, 394 U.S. 557 
(1969)......... .................... 25

Stanley v. Illinois, 405 U.S. 654 
(1972)...... ................. ...... 25

Thomas v. Collins, 323 U.S. 516 
(1945)........ .....................  25

Time, Inc. v. Hill, 385 U.S. 374 
(1967)...................... 24

Tinker v. Des Moines School District,
393 U.S. 503 (1969)... ............ 46

Tribune Review Publishing Co. v.
Thomas, 254 F.2d 883 (3d Cir. 1958). 51

Trimble v. Johnston, 173 F.Supp.
651 (D.D.C. 1959)............ . 34

United States v. O'Brien, 391 U.S.
367 (1968)..................   37, 44

Virginia Board of Pharmacy v.
Virginia Consumer Council, 425 U.S.
748 (1976)...... ............. 24, 56

Wolff v. McDonnell, 418 U.S. 539 
(1974)............. ................  45

Yarish v. Nelson, 27 Cal.App.3d 893 
(1972).....................;........ 37

-vi-



Page

Zacchini v. Scripps-Howard 
Broadcasting Co., U.S. ,
97 S.Ct. 2849 (1977).... .......... 61

Zerael v. Rusk, 381 U.S. 1 (1965).... 28 

Statutes and Rales

California Government Code, §26605.. 37

California Penal Code, §4570...... . 37

California Penal Code,
§4570.5..... ............. .......... 37

California Penal Code, §4571.......  37

California Penal Code, §4572.......  37

Fed.R.Civ. P. 52...................  46

Other Authorities

Brandeis, Louis D., Other People's 
Money, 92 (1914)................. . 62

California Department of 
Corrections, Administrative Manual, 
§415.08................___.....____35

Federal Bureau of Prisons, Policy 
Statement, 1220.IB, Sec.(f)(1).....  35, 52

-vii-



Page

Park? On Being Medium Nice to 
Prisoners, Wash. U.L.Q. 607 (1973).. 42

Stewart, Or of the Press, 26
Hastings L.J. 631 (1975) ............ 26, 34, 43

The Right of the Press to Gather
Information, 71 Col.L.Rev. 838
(1971)...... .......................  26

The Rights of the Public and the 
Press to Gather Information, 87 
Harv.L.Rev. 1505 (1974).............  26, 42

The Raper Organization, Changing 
Public Attitudes toward Television 
and Other Mass Media, 1959-1976,
3 (May, 1977)............. ......... 61

-vxxx-



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1977.
No. 76-1310.

THOMAS L. HOUCHINS,
Petitioner,

v.
KQED, INC., ET AL.,

Respondents.

Brief for Respondents KQED, et al.

QUESTION PRESENTED
Until this suit was filed, the sheriff 

completely excluded both the press and the gen­
eral public from the county jail. Upon learn­
ing of an inmate's suicide in circumstances 
raising serious questions about jail conditions 
and compliance with court orders, respondent 
KQED sought access to the jail to ascertain and 
report the facts. Petitioner flatly refused. 
The district court found that news access rea­
sonably necessary to prevent concealment of jail 
conditions from the public would not harm any 
legitimate interest of the sheriff. The court 
thus granted a preliminary injunction requiring 
the sheriff, under procedures to be determined



2

by him, to admit reporters at reasonable times 
except when jail security might be threatened. 
The question presented is whether, in these cir­
cumstances , the court erred in authorizing dif­
ferent access for news reporters than the sher­
iff now chooses to allow the public at large.

STATEMENT OF THE CASE 
A. Proceedings In The Courts Below

Respondents (plaintiffs in the district 
court) are KQED, Inc. and the Alameda and Oak­
land branches of the NAACP. KQED is a non­
profit corporation engaged in educational tele­
vision and radio broadcasting. Publicly- 
supported, KQED serves the counties in the San 
Francisco Bay Area. It maintains a daily tele­
vision news program, entitled "Newsroom." The 
members of the NAACP plaintiffs are residents 
of Alameda County, California, and allege both 
an interest in knowing conditions in their 
county j ail (whose prisoners are disproportion­
ately black) and reliance on local news media 
to inform them so that they can participate 
meaningfully in the current public debate on 
county jail conditions (A. 4).— ^

1/ Citations to "A" refer to pages of the Ap­
pendix .



3

Petitioner Houchins is the Sheriff of 
Alameda County and operates the county j ail. 
When the sheriff excluded KQED and all news re­
porters , as a matter of general policy, from 
investigating events and conditions at the j ail, 
respondents filed this suit and moved for a pre­
liminary injunction (A. 7). The motion was 
based on supporting affidavits (A. 8,13,14,16, 
18,59,60,63,64) and on the testimony at an evi­
dentiary hearing of the Sheriff of San Fran­
cisco County, an official from San Quentin State 
Prison and several experienced news reporters.

The district court granted preliminary
injunctive relief, requiring petitioner to allow
reasonable access by reporters to the jail (A.
66-71). The specific methods of implementing
such access were left to the sheriff. He then
sought and was granted a temporary stay of the
order, to enable him to develop specific proce-

2/dures for access (R.66-68,74).—  But instead 
of implementing any such procedures, the sher­
iff filed notice of appeal and obtained a stay 
from two judges of the Ninth Circuit. The

2/ Citations to "R" refer to pages of the cer­
tified Record on Appeal in the Ninth Circuit.



4

appeal was then expedited on respondents’ 
motion.

On November 1, 1976, the Court of
Appeals unanimously affirmed the district 
court's order. On December 22, 1976, the court 
below denied rehearing, no member of the entire 
Ninth Circuit voting to rehear the case en banc. 
The Court of Appeals denied a stay pending cer­
tiorari . A stay was granted by Mr. Justice 
Rehnquist on January 28, 1977.

B. Statement of Facts
1. Events leading to this suit.
KQED’s Newsroom has for many years re­

ported regularly on news at prisons and jails 
in the San Francisco Bay Area (Tr. 167-70; A. 
9-10; P.Exh. 4,5).—  A large number of stor­
ies have been covered on the premises of the 
institutions, with film, video or still camera. 
Included have been reports from the San Fran­
cisco , Contra Costa, San Mateo and Santa Clara 
County jails and San Quentin and Soledad pri­
sons . None of this activity has ever caused

3/ Citations to "Tr." refer to pages of the 
Reporter's Transcript of the evidentiary hear­
ing held on November 6 and November 10, 1975. 
Citations to "P.Exh." and "D.Exh." refer, re­
spectively, to plaintiffs' and defendant's ex­
hibits received in evidence at the hearing.



5

any institutional disruption of any kind (Tr. 
170-71; A. 10, 13, 14-15, 64-65).— 1

In March, 1975, KQED's Newsroom learn­
ed of and reported the suicide of a black pri­
soner at the Alameda County jail (Tr. 171; A. 
11). KQED received information that the suicide 
occurred shortly after a county judge had or­
dered a psychiatric examination of the inmate, 
but officials had not provided one (A. 11).
The suicide occurred in a facility whose 
conditions a federal court in San Francisco had 
previously condemned as "shocking and debasing," 
violating "basic standards of human decency."—  
KQED also reported statements by a psychiatrist 
employed at the jail that conditions in the 
facility were partly responsible for the pri­
soners’ emotional problems. The psychiatrist

4/ In covering stories on location in jails 
and prisons, KQED recognizes that inmates are 
entitled to privacy, and this is respected. As 
a matter of policy, KQED does not photograph or 
interview inmates without their consent (Tr. 
170-71; A. 11). When appropriate or required, 
KQED obtains formal written consents (Tr. 171).

5/ The "truly deplorable" conditions were 
found to be cruel and unusual punishment. 
Brenneman v. Madigan, 343 F.Supp. 128, 132-33 
(N.D. Cal. 1972).



6

was fired after he appeared on Newsroom (Tr. 
186-87). KQED quoted the sheriff as denying 
that the conditions were responsible for the 
prisoners' problems (A.11).

KQED's news anchorman telephoned peti­
tioner Houchins and requested permission to see 
the jail facility in question and take pictures 
there (A.11; Tr. 171). The sheriff refused, 
stating only that it was his "policy" not to 
permit any press access to the jail (Id.). He 
gave the same response to another television 
reporter who sought to cover stories of alleged 
gang rapes and poor conditions at the jail (Tr. 
208-209). KQED attempted to follow events with 
subsequent reports on a Board of Supervisors 
investigation of certain jail conditions (Tr. 
172-73), and with stories of the public debate 
on whether and where to build a costly new jail 
(P.Exh. 5), but without access to the jail.

Until this suit was filed, access to 
the jail was denied to all, even though the 
sheriff testified that he had never heard of any 
disruption in any jail or prison, anywhere, be­
cause of news access (A.69; Tr. 126-28).—

6J A previous sheriff had conducted one



7

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

initiated a series of six monthly guided tours 
for the public.—  ̂ Each tour was limited to 25 
persons (Tr. 174). The tours were booked on a 
first come-first served basis. Reporters were 
permitted to go on the tours if they signed up 
in time. Since public interest exceeded tour 
capacity, all six tours for 1975 were complete­
ly booked within a week after they were an­
nounced in July (Tr. 116-17; A. 59-60, 63-64). 
Thus, anyone, including a news reporter, 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 (Id.) ■

6/ continued.

"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 (A. 16-17). Subsequent
attempts by reporters to cover stories at the 
jail were rebuffed by the sheriffs (Id. ; Tr. 
207-10).

7/ The sheriff testified that he initiated 
the tours in order to gain support for the con­
struction of new jail facilities in the county 
(Tr. 81, 129).



8

At the outset of each tour, a jail of­
ficial laid down the ground rules for the tour­
ists . It was forbidden to speak with any in­
mates who might be encountered (A. 61; Tr. 62, 
175). No photographs were permitted (A. 61;
Tr. 62, 174). The sheriff offered a series of 
20 photographs for sale to the tourists, at $2 
each or $40 for the set (Tr. 65; A. 61).— ^

The evidence before the district court 
demonstrated several ways in which restriction 
to the tours frustrated reporting of jail condi­
tions to the public:

(a) The tours were "guided" by several 
guards (Tr. 57-58; A. 61-62), who took the tour­
ists through most but not all of the jail facil­
ities . Excluded was the notorious "Little Grey- 
stone" (A. 61; Tr. 30, 174-75), the scene of 
alleged beatings, rapes and poor conditions (Tr.

8/ The photos are D.Exh. "D". There were no 
photos of the women’s cells (Tr. 64), of the 
"safety cell" (Tr. 65), of the "disciplinary 
cells" (Tr. 67), of the interior of Little Grey- 
stone or of the bakery, laundry or fire station 
(Tr. 39). The photo of a Big Greystone cell 
omits the wire mesh ceiling and the catwalk 
above the cell that allow guards to peer down 
on the inmate (A. 61; Tr. 176). The day room 
photo omits the television monitor that ob­
serves inmates and the open urinals (Id.).



9

174-75, 208). Also excluded were the "disci­
plinary cells" (Tr. 67).

(b) The tourists were not allowed to 
ask even simple questions of randomly encounter­
ed inmates.— ^

(c) The sheriff required that inmates 
generally be removed from view (Tr. 106). Thus, 
the tourists never saw normal living conditions 
at the jail (A. 61).

(d) The tourists were not permitted 
to take any cameras with them. A reporter tes­
tified that "The most effective thing we can do 
on television is not filter [the information] 
through a reporter, but show it directly" (Tr. 
180). Other reporters stated that the inability 
to publish realistic pictures of jail conditions 
made it difficult to convey accurate information 
to the public (A. 64-65; A. 62; cf. A. 16-18). 
The sterile and unrealistic photos proffered 
for sale by petitioner showed only selected

9/ Thus, for example, tourists would not be 
allowed to ask an inmate they saw "What did you 
have for lunch?" or "Is it always this clean?" 
or "What was it like during the fire last 
week?" or "How's the noise level here?" or "Did 
the recent women's riot lead to any reforms?"



10

plant and equipment and did not hint at the ac­
tual conditions of life in the jail (A. 61; Tr. 
176).

(e) Finally, offering only a periodic 
tour made it impossible to cover a specific 
event or follow a developing news story (Tr. 
175-76; A. 62-63). News events do not coincide 
with the sheriff's schedule of tours. Limita­
tion to a scheduled tour made it impossible to 
cover an escape, a fire or a suicide as soon 
afterward as access could safely be provided, 
or a new facility, program or other event of 
public interest. It also made it possible for 
the jail to be "scrubbed up," as was done for a 
press tour conducted by a previous sheriff (A. 
17).

3. Access to other jails 
and prisons.

The evidence before the district court 
showed that other jails and prisons in the area 
do not have 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 Franci sco operates



11

four jails. He routinely authorizes reporters 
to enter and cover stories in his jails (Tr. 
190-92; A. 15). The reporters are permitted to 
use cameras and sound equipment (Tr. 196, 216). 
The sheriff also permits interviews of both in­
mates and staff (Tr. 196). Never, on any occa­
sion, has this access created any security pro­
blems or any disruptions (Tr. 191-92; A. 15). 
This access does not disrupt jail routine or 
the constant movements of prisoners within or 
without the jail (Tr. 192-95, 198-99). Nor does 
it create extra work or overtime for jail staff 
(Tr. 203). Inmate privacy is protected by 
guidelines prescribing that none will be photo­
graphed or interviewed without his consent (Tr. 
2 0 2).

Further, the San Francisco Sheriff ad­
vanced affirmative reasons, from the point of 
view of a correctional administrator, for admit­
ting reporters to the jails. He testified that 
jails "routinely end up being places that are 
extraordinarily and most unnecessarily abusive 
to people" and that news coverage of conditions 
enhances public awareness and thus motivates 
county government to provide adequate funds for 
more decent facilities (Tr. 193-94; A. 15).



12

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

stations have done stories on the premises of 
numerous other county jails and prisons, with­
out any difficulties or disruptions of any kind 
(A. 9-10; P.Exh. 5; Tr. 167-70). The State of 
California1s Guidelines for Local Detention 
Facilities, offered in evidence by petitioner 
(D. Exh. I), state that: "As in any government
operation, the public has a right to know how 
and why its tax dollars are spent in detention 
and corrections. . . .  In particular, the var­
ious news media should be provided with accurate 
and timely information so that the public can 
be adequately informed at all times" (p. 22).

c. San Quentin.
San Quentin's Public Information 

Officer testified about the press policy of the 
California Department of Corrections and its 
implementation in San Quentin (Tr. 143-65).
The Department provides for completely open news 
access to the prisons, with reporters allowed 
to use cameras and sound equipment, to view all 
areas of the prison (including all maximum se­
curity areas), to talk with prisoners generally 
and to interview prisoners of their choice (Id.,



13

P.Exh. 3) The Department's premise is the citi­
zen' s "right to know,” through the press, condi­
tions in the prisons (Tr. 144; P.Exh. 2, 3).

The San Quentin official testified that 
arrangements for reporters to come to the insti­
tution are very simple, and are made the same 
day of the request (A.64-65; Tr. 148-49). The 
official usually accompanies the reporters, but 
no guards are part of the escort (Tr. 149-50). 
Although there are considerable movements of 
prisoners within San Quentin (they are "moving 
all day long," including some who go to court 
outside the prison, Tr. 150-51), San Quentin 
has experienced no disruptions or security pro­
blems whatever because of press access (Tr. 
151). Inmates are in their cells or going about 
normal institutional activities while 
reporters are present (Tr. 155, 164). The press 
could of course be excluded by the warden if 
any security problem developed (Tr. 161-62). 
None has.” ^

In addition to providing open news 
media access, San Quentin has frequent tours

10/ The record here shows that the California 
authorities have completely abandoned the press 
restriction they defended as essential to secur­
ity in Pell v. Procunier, 417 U.S. 817 (1974).



14

for the general public, during which inmates 
are regularly encountered (Tr. 153-54).

d. National policy.
The district court received in evi­

dence the relevant standards promulgated by the 
National Advisory Commission on Criminal 
Justice Standards and Goals (P.Exh. 1). The 
Commission was appointed by the Law Enforcement 
Assistance Administration to formulate stand­
ards for institutions benefitting from LEAA 
grants. Petitioner Houchins has received sub­
stantial funds from LEAA, including a grant for 
the reconstruction of the jail (Tr. 118-19), 
but he does not comply with the standards. 
Standard 2.17 provides that:

"Representatives of the media 
should be allowed access to all cor­
rectional facilities for reporting 
items of public interest consistent 
with the preservation of offenders' 
privacy."

Current policy for the Federal Bureau of Prisons 
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 pub­
lic ." Reporters may freely use cameras and tape



15

recorders, talk to randomly encountered prison­
ers , conduct interviews, etc.— ^

4. Experience of other news 
reporters.

The evidence before the district court 
also included unsuccessful attempts by other 
news reporters to cover stories at the Alameda 
County jail (A. 16-18, 63-64; Tr. 207-210).
One who wished to investigate reported gang 
rapes and suicide spoke personally with Sheriff 
Houchins, who excluded him from the jail. The 
sheriff gave no reason except that it was his 
"policy'’ not to allow entry (Tr. 208-9). The 
reporter also tried to go 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 (Tr. 209-10).

5. The district court's order.
Finding that the requirements for a 

preliminary injunction were met, the district

11/ As the Policy Statement indicates, the Bur­
eau has completely abandoned the press restric­
tion it defended as essential to security in 
Saxbe v. Washington Post, 417 U.S. 848 (1974).



16

court enjoined the sheriff, during the pendency 
of this suit, from excluding the press "as a 
matter of general policy" (A. 71). The order 
directed that reporters be given access "at rea­
sonable times and hours" for the purpose of pro­
viding news coverage of jail conditions. Defer­
ring to the sheriff's administrative discretion, 
the court provided that "the specific methods 
of implementing" access were to be "determined 
by Sheriff Houchins" (A. 70). Further, the 
order expressly stated that the sheriff may "in 
his discretion" deny all access "when tensions 
in the jail make such media access dangerous" 
(A. 71).

The sheriff sought and was granted a 
temporary stay to develop specific procedures 
covering 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. (R. 66-68, 74). The sher­
iff represented that he needed eight working 
days for this purpose (R. 67).

SUMMARY OF ARGUMENT
Conditions in the Alameda County jail 

have been of particular public concern in



17

recent times. County citizens need to be in­
formed in order to make intelligent decisions 
about publicly-determined jail issues, includ­
ing whether the sheriff's performance merits 
his re-election. KQED, the local public televi­
sion station, seeks to meet this public need by 
reporting jail conditions and events. Its ac­
tivity and the public's right to receive the 
information are complementary interests pro­
tected by the First Amendment.

I.
Respondents seek, and the district 

court authorized, substantially the same press 
access to the county jail as was in fact permit­
ted by the institutions in Pell v. Procunier 
and Saxbe vy Washington Post Co. The Court's 
statement in Pell-Saxbe, to the effect that 
newsmen have no special access to information 
not shared by the public generally, must be read 
in context. The prisons in those cases permit­
ted very substantial press access, reasonably 
sufficient to insure against concealment of con­
ditions or events of public concern. The sole 
restriction was a rule against journalists de­
signating individual prisoners for interviews. 
The Court found this narrow restriction



18

justified by evidence of security risks existing 
at the time. The restriction took the form of 
duly considered departmental and federal regula­
tions , tailored to a particular situation and 
entitled to certain deference. In contrast, 
petitioner’s "policy" needlessly shuts off in­
quiry into official conduct and conditions in a 
local jail whose largest category of detainees 
are charged with driving offenses.

This case does not involve any attempt 
to probe into confidential information or sensi­
tive executive or judicial deliberations. Nor 
do respondents contend that the sheriff has any 
affirmative duty to turn over information to 
the press. But he may not bar attempts by re­
porters to seek out non-confidential informa­
tion simply by erecting an identical bar to the 
public generally.

Adopting petitioner's position as a 
constitutional rule -- that in no circumstances 
are reporters entitled to different access than 
the general public -- would authorize him com­
pletely to exclude the press, as he did until 
this suit was filed, provided only that he also 
excludes the general public. It would sanction 
the concealment of jail conditions that gave



19

rise to this suit. Access to the tax-supported 
jail run by an elected sheriff is not a privi­
lege to be granted or withheld simply as peti­
tioner pleases, without regard to the existence 
of any valid state interest. Access substan­
tially like that permitted in Pell-Saxbe is the 
minimum needed to get timely and complete infor­
mation to the public. It represents a reason­
able accommodation between, on the one hand, 
press or public access at will and, on the 
other, arbitrary exclusion unduly constricting 
the flow of information to the public.

Reasonable "time, place and manner" 
restrictions can be implemented. But there are 
good reasons why such restrictions should not 
be identical in all circumstances for the press 
and the general public. In one respect, the 
sheriff can impose greater restrictions on re­
porters than he imposes on the touring public, 
as he can insist on proper credentials, can 
screen them and can search them and their equip­
ment. In other respects, lesser restrictions 
are required, for there is a valid distinction 
between the right to the information sought and 
the means of physical access to it. The press 
and the general public have equal rights to



20

non-confidential information. But both the pur­
poses of access to the information and the prac­
tical problems involved call for differences 
that the law ought not to ignore. Neither the 
holding of Pell-Saxbe nor sound policy requires 
that press and general public access be blindly 
equated regardless of the circumstances.

II.
The sheriff's access restrictions were 

demonstrated to be far greater than necessary 
to protect any substantial governmental inter­
est. The district court found on ample evidence 
that jail security would not be threatened by 
reasonable access. Nor does limited access on 
reasonable notice by reporters entail the admin­
istrative disruption that the sheriff asserts 
is caused by his cumbersome "tours." Prisoner 
interests in privacy are easily protected. The 
record affirmatively shows that none of peti­
tioner 's expressed concerns is in fact a pro­
blem. There is no reason why the sheriff cannot 
provide substantially the same access as rou­
tinely provided by the other jails and prisons 
in the area.

III.
The sheriff's mail, visiting and



21

telephone rules governing prisoners do not serve 
the same purposes and cannot conceivably meet 
the public need for information on jail condi­
tions . The periodic guided tours for the gen­
eral public disclose certain plant and equip­
ment to the handful of citizens who can journey 
to the remote jail to take the tours. But they 
are basically irrelevant to the need to report 
events and get timely information to the public 
at large.

ARGUMENT
Introduction

" [Conditions in this Nation's prisons 
are a matter that is both newsworthy and of 
great public importance." Pell v. Procunier, 
417 U.S. 817, 830 n.7 (1974).—  ̂ Jail and

12/ Noting that conditions in similar institu­
tions "are of great interest to the public gen­
erally," Judge Mansfield has elaborated as 
follows:

"Such public interest is both legiti­
mate 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 in­
formed as a means for developing re­
sponsible suggestions for improvement



22

prison conditions are of public concern not sim­
ply when they result in riots, disturbances, 
escapes, tragic fires, suicides and the like, 
but also when a new facility is planned or inno­
vative program developed. Jails and prisons 
are, after all, public institutions. They cost 
a great deal of tax money to build and operate. 
But unique among public institutions, they exist 
for the purpose of involuntarily confining and 
isolating certain citizens; their very invisibi­
lity presents the risk of abuse of individual 
l i b e r t i e s ^

12/ continued.

and of avoiding abuse of inmates who 
for the most part are unable intelli­
gently to voice any effective sugges­
tions or protests." Cullen v. Grove 
Press, Inc., 276 F.Supp. 727, 728-29 
(S.D.N.Y. 1967); see also Nolan v. 
Fitzpatrick, 451 F.2d 545, 547 (1st 
Cir. 1971).

13/ In contrast, "The openness of the public 
school and its supervision by the community af­
ford significant safeguards against the kind of 
abuses from which the Eighth Amendment protects 
the prisoner." Ingraham v. Wright, U.S.
___, 97 S.Ct. 1401, 1412 (1977) (emphasis
added). In Ingraham, the Court decided that 
although the Eighth Amendment protects prison­
ers , public school students do not need its pro­
tection from corporal punishment.



23

Conditions in Alameda County's jail 
have been of particular public concern in recent 
times. First, a federal court determined that 
conditions in one facility were so "shocking 
and debasing" as to violate the Eighth Amend­
ment Then there were the suicide in that
facility and the related developments that led 
to this suit, raising serious questions about 
jail conditions and compliance with court orders 
(pp.5-6, supra). Finally, during all this period 
the county has been debating whether and where 
to build new jail facilities costing many mil­
lions of dollars. The sheriff is elected by 
the public in Alameda County. It may not be in 
his self-interest to have public attention fo­
cused on matters he considers unfavorable, but 
county citizens, like the NAACP respondents in 
this case, should not be deprived of information 
necessary to assess his performance or to make 
intelligent decisions on publicly-determined 
jail issues. KQED, the local public television 
station, would like to meet this public need 
for information, by gathering and publishing

14/ Brenneman v^ Madigan, 343 F.Supp. 128, 
132-33 (N.D. Cal. 1972). The decision, requir­
ing extensive relief, was not appealed.



24

it. Mr. Justice Stevens, concerned about "inad­
equate public awareness of the nature of our 
penal system," has pointed out that: "from the
standpoint of society's right to know what is 
happening within a penal institution, it is per­
fectly clear that traditional First Amendment 
interests are at stake." Morales v. Schmidt, 
489 F .2d 1335, 1346 & n.8 (7th Cir. 1973).

Respondents' First Amendment interests 
are complementary --the right of the public to 
receive the information, and the right of the 
press to seek it out. First Amendment protec­
tions for gathering and publishing news "are 
not for the benefit of the press so much as for 
the benefit of all of us." Time, Inc. v . Hill, 
385 U.S. 374, 389 (1967); see also Cox Broad­
casting Corp. Cohn, 420 U.S. 469, 491 (1975). 
At stake in gathering information on jail condi­
tions is the "right of the public to receive 
such information". Pell v. Procunier, supra, 
417 U.S. at 832. The recipient's right, ground­
ed on the First Amendment, has often been recog­
nized.—  ̂ As the Court said in a related

15/ See Pell, supra, at 832; Virginia Pharmacy 
Board v. Virginia Consumer Council, 425 U.S. 
748, 756 (1976); Kleindienst v. Mandel, 408 
U.S. 753, 762-65 (1972); Red Lion Broadcasting



25

context, the addressee of a communication from 
prison has a First Amendment right against "un­
justified governmental interference with the 
intended communication." Procunier v̂ _ Martinez, 
416 U.S. 396, 409 (1974).

Regarding KQED's interest, the Court 
has acknowledged that "Without some protection 
for seeking out the news, freedom of the press 
could be eviscerated." Branzburg v. Hayes, 408 
U.S. 665, 681 (1972). As Mr. Justice Stewart 
explained,

"The full flow of information to 
the public protected by the free press 
guarantee would be severely curtailed 
if no protection whatever were afford­
ed to the process by which news is 
assembled and disseminated . . . .
News must not be unnecessarily cut 
off at its source, for without free­
dom to acquire information the right 
to publish would be impermissibly 
compromised." Id. at 727, 728 (dis­
senting opinion).16/

15/ continued.

Co. v̂ _ FCC, 395 U.S. 367, 390 (1969); Stanley 
v. Georgia, 394 U.S. 557, 564 (1969); Lamont v ■ 
Postmaster General, 381 U.S. 301, 308 (1965); 
Thomas v. Collins, 323 U.S. 516, 534 (1945).

16/ Mr. Justice Stewart has also pointed out 
that the First Amendment' s freedom "of the



26

Thus, the Court has recognized that "Newsgather- 
ing is not without its First Amendment protec­
tions ." Id. at 707; Pell v. Procunier, supra, 
417 U.S. at 833.— /

The present case involves the extent 
to which citizens are entitled to learn, through 
their local press, what is happening in their 
county jail.

16/ continued.

press" clause is unique -- the press is the 
only nongovernmental organization explicitly 
given constitutional protection. Stewart, "Or 
of the Press", 26 Hastings L.J. 631, 633 
(1975).

17/ See also Schnell v. City of Chicago, 407 
F.2d 1084 (7th Cir. 1969); Lewis v. Baxley, 368 
F.Supp. 768, 775 (M.D. Ala. 1973) (three-judge 
court); Note, The Right of the Press to Gather 
Information, 71 Col. L. Rev. 838 (1971); Note, 
The Rights of the Public and the Press to 
Gather Information, 87 Harv. L. Rev. 1505 
(1974). Long ago the Court affirmed that the 
First Amendment was not designed merely to pre­
vent censorship of the press but also "any ac­
tion of the government by means of which it 
might prevent such free and general discussion 
of public matter as seems absolutely essential 
to prepare people for an intelligent exercise 
of their rights as citizens." Grosjean v. Amer­
ican Press Co., 297 U.S. 233, 250 (1936) (quot­
ing Judge Cooley). See also Mills v. Alabama, 
384 U.S. 214, 219 (1966); New York Times Co. v. 
United States, 403 U.S. 713, 717 (1971).



27

I. The Decision Below Is Consistent With 
Pell v. Procunier And Saxbe v.
Washington Post.

Respondents seek, and the district 
court authorized, substantially the same press 
access to the county jail as was in fact permit­
ted by the institutions in Pell v. Procunier, 
417 U.S. 817 (1974), and Saxbe v. Washington 
Post Co., 417 U.S. 843 (1974).

Petitioner Houchins has never contended 
that county citizens have no right to be inform­
ed of jail conditions or that KQED is without 
First Amendment protection in seeking out the 
news. Instead, he points to the following 
statement in the Pell and Saxbe opinions:

"[N]ewsmen have no constitutional 
right of access to prisons or 
their inmates beyond that afford­
ed the general public. . . .
The Constitution does not. . .re­
quire government to accord the 
press special access to informa­
tion not shared by members of 
the public generally." Pell v. 
Procunier, supra, 417 U.S. at 
834; Saxbe v. Washington Post 
Co., supra, 417 U.S. at 850.

IO /
Based on this statement,— 7 the sheriff argues

18/ The Court's sole reliance for this propo­
sition in Pell-Saxbe was on Branzburg v. Hayes,



28

that it is irrelevant whether his restrictions 
needlessly frustrate reporting of jail 
conditions -- all he has to do is mechanisti­
cally equate KQED's rights with those of the 
public in general, wholly excluding both or 
limiting both to guided tours. But the hold­
ings of Pell and Saxbe do not require this re­
sult . Nor does sound policy.

18/ continued.

408 U.S. 665 (1972). The opinion in Branzburg 
contained a similar statement, but all the case 
held was that a newsman had no constitutional 
privilege to resist testifying before a grand 
jury investigating crime of which he had know­
ledge . As the Court noted in Branzburg, "The 
sole issue before us is the obligation of re­
porters as other citizens to respond to grand 
jury subpoenas relevant to an investigation 
into the commission of crime." 408 U.S. at 682 
(emphasis added). The Court also pointed out 
that (unlike the situation here) its holding 
involved "no restraint on what newspapers may 
publish or on the type or quality of informa­
tion reporters may seek to acquire" Id. at 691 
(emphasis added). The Branzburg "access" dic­
tum in turn relied on Zemel v. Rusk, 381 U.S. 1 
(1965). In Zemel the Court held that a citizen 
did not have a constitutional right to have his 
passport validated for travel to Cuba. ”[T]he 
weightiest considerations of national secur­
ity, " 381 U.S. at 16, militated against this 
asserted right. There was no issue whatever as 
to the rights of the press.



29

The sole restriction on access upheld 
by Pell and Saxbe was a prison rule against the 
press designating specific inmates for inter­
views. The Court’s "no special access to infor­
mation" statement must be read in the context 
of prisons that already permitted very substan­
tial press access. Thus, the Court expressly 
pointed out in Pell that "both the press and 
the general public are accorded full opportuni- 
ties to observe prison conditions." 417 U.S.
at 830 (emphasis added). After noting that the 
prisons conducted regular tours for the public, 
the Court found that "In addition, 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
(emphasis added). Newsmen were permitted "to 
enter the prisons to interview" randomly select­
ed inmates, and to observe program group 
meetings and interview the participants. Id. 
The same was true in Saxbe. There, the Court 
noted that "members of the press are accorded 
substantial access to the federal prisons in 
order to observe and report the conditions they 
find there." 417 U.S. at 847. In addition,



30

newsmen were permitted to tour and photograph 
any prison facilities and interview inmates they 
encountered. Id. at 847, n.5.

Indeed, in both cases press access to 
the prisons involved was substantially broader 
than that of the general public, as the Pell 
opinion emphasized no less than three times,
417 U.S. at 830-31, 831 n.8, 833, and Saxbe 
twice, Id. at 847, 849.(Public access was limit­
ed, as here, to correspondence, visitation and 
guided tours.)

In short, the no-interview rule in Pell
and Saxbe was upheld only on a record showing
that reporters in fact had substantial access
to the prisons, access reasonably sufficient to
insure against concealment of conditions or

19/events of public concern.—  As the district

19/ The same was true in Garrett v. Estelle,
___ F.2d ___, No. 77-1351 (5th Cir. Aug. 3,
1977), where a television cameraman sued for 
the right to film an execution from the execu­
tion chamber. Far from concealing the event, 
the state authorized Associated Press and Uni­
ted Press reporters actually to be present in 
the execution chamber and to act as press pool 
representatives; it also made facilities avail­
able for other press corps members to view a 
simultaneous closed circuit telecast; and it 
authorized interviews of death row inmates. 
This access assured coverage of the grisly



31

court noted in the present case, the Pell-Saxbe
access is precisely the same sought by KQED.
Thus, KQED can be granted all the relief it
seeks and it will have no more access than the

20/press had in Pell-Saxbe.—  The district court
order is consistent with the holdings in those

21/cases.— -

19/ continued.

event itself; the court simply upheld a narrow 
restriction on the manner of coverage.

20/ In his opinion on petitioner* s stay appli­
cation, Mr. Justice Rehnquist stated that "con- 
cededly the access of the public and the press 
to the Alameda County jail is less than was 
their access to the California prisons in Pell" 
(Appendix to Petition for Certiorari, p . 37), 
and noted the possibility that the Pell and 
Saxbe "no special access” statement would not 
necessarily be dispositive if "impliedly limi­
ted to the situation where there already existed 
substantial press and public access to the pri­
son" (Id. at 38). We contend that Pell and 
Saxbe do not control for this reason and be­
cause of the other distinctions and policy con­
siderations that follow.

21/ Part of the district court's order here 
does authorize "inmate interviews," without fur­
ther definition (A. 71). This was clearly 
meant to authorize the same kind of random or 
anonymous interviews permitted in Pell and 
Saxbe (A. 69). The sheriff permits interviews 
of specifically designated pretrial detainees



32

Moreover, the narrow no-interview re­
striction in Pell-Saxbe was supported by evi­
dence in both cases of security risks existing 
at the time -- undue attention to "big wheels"
who had gained notoriety and influence over

22/other prisoners.—  The restriction was a mea­
sured response to particular violent episodes.
It took the form of duly considered departmental 
and federal regulations aimed at a particular 
problem. Here, in contrast, the jailer's re­
strictive "policy” is not specifically authori­
zed by any statute or regulation, or tailored 
to any emergency. It can be altered by the mom­
ent as the sheriff pleases. It is not entitled 
to great deference.

In addition, the local county jail is 
a different kind of institution from the prisons 
involved in Pell and Saxbe. Instead of confin­
ing felons, many of whom are recidivists con­
victed of very serious crimes, the county jail

21/ continued.

(but not sentenced prisoners), provided that 
reporters obtain formal consents (A. 30).

22/ As noted above (nn. 10,11, supra), the in­
stitutions involved in Pell and Saxbe have 
since abandoned their "no-interview" rules.



33

has only pretrial detainees and persons convict­
ed of misdemeanors or serving short felony 
terms. According to the sheriff's evidence, 
the largest number of pretrial detainees at the 
jail are charged with driving offenses, includ­
ing drunk driving (28%); drug charges account 
for 14%; only 7% are charged with assault, 6% 
with burglary and 2% with robbery (D.Exh.F, last 
page). Apart from the different kind of secur­
ity risks in the prisoner population, the penal 
interests of deterrence and rehabilitation, men­
tioned in Pell, have no application to pretrial 
detainees, who have not been convicted of any 
crime.

This case does not involve an attempt 
to acquire confidential "information not shared 
by members of the public generally." Pell, 
supra, at 834. KQED does not assert any right 
to probe into matters that should properly be 
secret or confidential, such as sensitive execu­
tive or judicial deliberations. Its reporters
do not seek to observe security staff confer-

23/ences or inspect riot control plans.—  These

23/ Similarly, KQED does not complain of being 
"regularly excluded from grand jury proceed­
ings , [the Court's] own conferences, the meet­
ings of other official bodies in executive



34

are instances in which government has a need to 
keep the information confidential, while in the 
present case there is a need to have the infor­
mation on jail conditions made public. We 
recognize, with Mr. Justice Stewart, that the 
First Amendment itself is not a Freedom of In­
formation Act, requiring "openness from the bur­
eaucracy. ” Stewart, Or of the Press, 26 Hast­
ings L.J. 631, 636 (1975). KQED therefore does 
not contend that the sheriff has any affirmative 
duty to turn over information to the press, make 
himself available to explain policy, open his 
files to inspection, or even notify the press

23/ continued.

session, and the meetings of private organiza­
tions ." Branzburg v. Hayes, 408 U.S. 665, 684- 
85 (1972); see also Trimble v^ Johnston, 173 
F.Supp. 651 (D.D.C. 1959) (reporter not en­
titled to inspect confidential government pay­
roll records). Nothing about a jail cell repre­
sents either a deliberative or confidential gov­
ernment function. Branzburg's additional com­
ment that "Newsmen have no constitutional right 
of access to the scenes of crime or disaster 
when the general public is excluded" (Id.), re­
fers to emergencies. This is not an issue in 
the present case because the district court 
order expressly acknowledges the sheriff's 
power to deny all access if he thinks jail ten­
sions would make access dangerous.



35

of important occurrences.—  But he cannot bar 
attempts by news reporters to seek out non- 
confidential information simply by erecting an 
identical bar to the public generally.

Adopting petitioner's position as an 
inflexible constitutional principle -- that in 
no circumstances are reporters entitled to dif­
ferent access than the general public —  would 
authorize him completely to exclude the press, 
as he did until this suit was filed, provided 
only that he also excludes the general public.
It would sanction the concealment of jail con­
ditions that gave rise to this suit, and deprive 
the electorate of information necessary to eval­
uate the conduct of the elected sheriff's 
office. The guided tours could be swiftly can­
celled. The sheriff could at his whim impose a 
total information blackout, regardless of whe­
ther there is any justification in terms of jail 
security or any other valid penal interest.

24/

24/ Federal and California prisons are re­
quired by regulation promptly to inform the 
press of any newsworthy event and permit re­
porters to cover the story. Federal Bureau of 
Prisons, Policy Statement 1220.1 B, sec. (f)(1) 
(Appendix to Petition for Certiorari, p. 12); 
California Department of Corrections, Adminis­
trative Manual, §415.08 (P. Exh. 3; Tr. 144- 
49).



36

Giving this kind of unfettered discretion to 
any public official is plainly inconsistent with 
safeguarding First Amendment interests.— ^

The Court should firmly reject the 
sheriff's notion that access to the tax- 
supported county jail, by either press or in­
dividual members of the public, is a privilege 
to be granted or withheld as he pleases. His 
position is not sanctioned by California case

25/ See generally Southeastern Promotions 
Limited v^ Conrad, 420 U.S. 546, 553 (1975); 
Shuttlesworth v^ Birmingham, 394 U.S. 147, ISO- 
51 (1969); Main Road v. Aytch, 522 F.2d 1080, 
1098 (3d Cir. 1975). In Procunier v, Martinez, 
416 U.S. 396, 415 (1974), the Court remarked
that "Not surprisingly, some prison officials 
used the extraordinary latitude for discretion 
authorized by the regulations to suppress unwel­
come criticism."



or by this Court'slaw:26/ or statutes 27/
J

37

26/ The California case most directly in point 
acknowledged that a sheriff may "reasonably re­
gulate the operation of the jail" but held that 
even a convicted felon, who was serving as an 
attorney's investigator, was entitled to visit 
the jail because there was "no showing. . .that 
the. . .visits to the j ail cannot be so handled 
as to avoid endangering security." Clifton v. 
Superior Court, 7 Cal.App.3d 245, 255 (1970). 
Mathis v. Appellate Department, 28 Cal.App.3d * 8
1038 (1972), held that jail officials may re­
strict visitation "in ways reasonably consis­
tent with the security of the facility." Id. at 
1041. Davis v. Superior Court, 175 Cal.App.2d
8 (1959), held that " reasonable" rules on pri­
son communication are permissible. Id. at 
19-20. Yarish v. Nelson, 27 Cal.App.3d 893 
(1972), like Pell, upheld a narrow rule against 
a press interview of a specific prisoner. In 
doing so, the court followed what it called a 
"reasonableness" test, based on United States 
v^ O'Brien, 391 U.S. 367 (1968), discussed at 
p . 44, infra.

27/ Cal. Govt. Code §26605 simply says that 
"The Sheriff shall take charge of and keep the 
county j ail and the prisoners in it." Various 
Penal Code provisions make it a crime to com­
municate with a prisoner without permission of 
the officer in charge (§4570); to use false 
identification to gain admittance (§4570.5); if 
a former convict, to come on the grounds with­
out consent (§4571); and, if a tramp or vagrant, 
to come on the grounds and communicate with a 
prisoner (§4572).



38
^ O /

decisions.— ' Nothing authorizes him needless­
ly to shut off inquiry into jail conditions. 
Access substantially like that permitted in 
Pell-Saxbe is the minimum needed to get timely 
and complete information to the public. It re­
presents a reasonable accommodation between, on 
the one hand, press or public access at will 
and, on the other, arbitrary exclusion unduly 
constricting the flow of information to the pub­
lic.

Reasonable "time, place and manner" 
restrictions can of course be implemented. But 
there are good reasons why such restrictions 
should not be identical in all circumstances 
for the press and the general public. A valid 
distinction may be drawn between the right to

28/ Saxbe v. Washington Post Co. does mention 
the "truism that prisons are institutions where 
public access is generally limited," 417 U.S. 
at 849, but does not specify what the limita­
tions are. Adderly v. Florida, 385 U.S. 39 
(1966), simply upheld trespass convictions of 
students who conducted a demonstration that ac­
tually blocked the jail entrance used to trans­
port prisoners. 385 U.S. at 45. The lower 
court decisions cited by the sheriff (Peti­
tioner’s Opening Brief, pp. 26-27) do not in­
volve jails at all. They simply recognize, as 
we do, that not every public building is re­
quired to serve as a "forum" for protests and 
demonstrations.



39

the information sought and the means of physical 
access to it. The press and the general public 
have equal rights to non-confidential informa­
tion. But when it comes to physical access to 
the information, both the purposes of access
and the practical problems it presents call for

29/differences that the law ought not to ignore.—  
It is impractical to have free access 

for the general public randomly to inspect jail 
facilities. Both their numbers and their unpre­
dictability weigh in favor of organized, con­
trolled , periodic access like petitionerf s 
tours. This is especially true where, as here, 
the sheriff does not take the precautions of 
requiring members of the public to present any 
identification, submit to any screening, state

29/ As Judge Hufstedler pointed out below, "it 
does not follow that regulations that are rea­
sonable under the circumstances as applied to 
touring groups of the public are also reasonable 
as applied to new media personnel. . . . Guided 
public tours and news media access do not serve 
identical purposes nor do they involve identi­
cal practical problems." (Appendix to Petition 
for certiorari, p. 25). Judge Duniway simi­
larly found the administrative problems 
"obviously" different and reasoned that "the 
law ought to recognize the differences" (Id. 
at 22).



40

any purpose for wanting to view the jail or be 
searched (Tr. 75). But under the district 
court's order, the sheriff can insist on proper 
identification of reporters, screen them and 
search them and their equipment. In this speci­
fic respect, the sheriff can reasonably impose 
greater restrictions on reporters than on the 
general public.

But less restrictive provisions are 
also required. Aside from the practical differ­
ences justifying different kinds of access, 
press and public have different purposes for 
going to the jail. Members of the general pub­
lic may wish to see the jail for some personal 
reason, or out of idle curiosity. But reporters 
go for reasons unique to the function which the 
press performs on behalf of the public— to cover 
events of public interest, and to gather and 
publish information on jail conditions. They 
serve as the "eyes and ears" of the public at 
large. To fulfill this purpose, they need ac­
cess at least approximating that permitted in 
Pell-Saxbe. Reporting of news events, in parti­
cular, cannot await next month's public "tour."

The only way the public at large will 
be informed of conditions at the Alameda County



41

jail is through the press. The jail is located 
in a remote corner of the county, almost an 
hour's drive from the population center of Oak­
land (Tr. 55), and practically inaccessible by 
public transportation. Without reasonable press 
access, taxpayers and voters will remain ignor­
ant of jail conditions and unable intelligently 
to decide on publicly-determined issues of jail 
policy. As Judge Duniway pointed out below,

"[I]n our modern, urban, overpopu­
lated, complex and somewhat intimidat­
ing and alienated society, only the 
media, as distinguished from the sub­
merged, often alienated, and often 
frightened, individual, can be counted 
on to dig out and disseminate the 
facts about the public's business.
Witness 'Watergate' and its remarkable 
consequences." (Appendix to petition 
for certiorari, p. 22).

This Court has noted the same reality:
"In a society in which each indivi­
dual has but limited time and resourc­
es 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~Tl975).

Mr. Justice Powell, agreeing that "for most ci­
tizens the prospect of personal familiarity with



42

newsworthy events is hopelessly unrealistic," 
sees the press acting as the "agent" of the pub­
lic at large. Saxbe v. Washington Post Co., 
supra, 417 U.S. at 863 (dissenting opinion).
In this representative capacity the press can, 
with reasonable but somewhat different access . 
than the general public, satisfy the public need
for information without undermining any substan-

30/tial governmental interest.—

30/ See also Note, The Rights of the Public 
and the Press to Gather Information, 87 Harv.
L. Rev. 1505, 1522 (1974). A California prison 
official, preferring that the press act as agent 
for the public instead of relying on public 
tours, put it this way:

"A far better provision for opening 
prisons to the public eye is to safe­
guard the right of access to all pub­
lic institutions by responsible news­
men. Where the president of the local 
Ladies’ Aid Society can inform only 
the few in her group, the media can 
inform millions of citizens about pri­
son programs. The media does a good 
job of reporting in most instances, 
and prison administrators should have 
no qualms about admitting responsible 
reporters to view prison activities 
and to interview men in these pro­
grams." Park, On Being Medium Nice 
to Prisoners, Wash. U.L.Q. 607, 615 
(1973).



43

In summary, neither the holding of Pell 
and Saxbe nor sound policy requires that identi­
cal time, place and manner restrictions be im­
posed on press and public. Freedom "of the 
press" need not be defined in all circumstances 
by the rights of the public at large. If the 
Free Press guarantee meant no more than every 
citizen's right of Free Speech, "it would be a 
constitutional redundancy." Stewart, "Or of 
the Press," 26 Hastings L.J. 631, 633 (1975).

II. The Sheriff's Access Restrictions Are Far 
Greater Than Necessary To Protect Any Sub- 
stanti aT~^ veiimmenbaT~T5terest^ ~

As discussed above, Pell and Saxbe do 
not require that the means of press and general 
public access to information be blindly equated 
regardless of the circumstances. Rather, the 
decisions in those cases followed from applica­
tion of a traditional First Amendment test -- 
whether the particular restriction on First 
Amendment activity was in fact justified by an 
important governmental interest. Since there 
was evidence that prison security was actually 
endangered (at least at the time) by designating 
individual prisoners for interviews, and since 
the narrow no-interview rule did not constrict



44

the otherwise free flow of information through 
the press, the Court upheld the rule.

In other words, Pell and Saxbe did not 
mark a departure from settled First Amendment 
principles. Under those principles, a jailer's 
restriction on First Amendment interests is jus­
tified only if, first, the restriction furthers 
"an important or substantial governmental inter­
est unrelated to the suppression of expression," 
and second, the limitation of First Amendment 
freedoms is "not greater than is necessary or 
essential to the protection of the particular 
governmental interest involved." Procunier v, 
Martinez, 416 U.S. 396, 419 (1974). See also 
United States v^ O ’Brien, 391 U.S. 367, 377 
(1968); Shelton v. Tucker, 364 U.S. 479, 488-90 
(1960) 11

In the present case, the district court

31/ In Linmark Associates, Inc. v. Township of
Willingboro, ____ U.S. ____, 97 S.Ct. 1614, 1619
(1977), the Court acknowledged that an ordin­
ance might serve an important purpose but, ab­
sent evidence that it was necessary to that pur­
pose , held that city officials could not re­
strict "the free flow of truthful information." 
The sheriff agrees that United States v.
0'Brien, supra, states the correct test (Peti­
tioner's Opening Brief, p. 20), but fails to 
apply it to the facts of this case.



45

found that the sheriff's access restrictions 
were greater than necessary to protect any im­
portant interest. Apart from the bland general­
ity that the district court should have shown 
more "deference" to the sheriff because the pro­
blems "are not amenable to solution by judicial 
decree,"—  ̂ petitioner advanced three kinds of 
interests alleged to justify his restrictions:

32/ This is not a "prisoners rights" case in­
volving the knotty problems of daily confronta­
tions between keepers and kept. We recognize 
that courts must consider the views of correc­
tions officials, as the district court indeed 
did in this case. But appropriate concern for 
their views "cannot encompass any failure to 
take cognizance of valid constitutional claims.
. . . When a prison regulation or practice of­
fends a fundamental constitutional guarantee, 
federal courts will discharge their duty to pro­
tect constitutional rights." Procunier v^ Mar­
tinez, 416 U.S. 396, 405 (1974) (First Amend­
ment and due process protection for outsider- 
prisoner communication); see also Bounds v. 
Smith, ___ U.S. ___, 97 S.Ct. 1491 (1977) (pri­
soners' access to courts); Estelle v. Gamble, 

U.S. ___, 97 S.Ct. 285 (1976) (prisoner med­
ical careTT”Wolff v. McDonnell, 418 U.S. 539 
(1974) (procedural due process protection 
against in-prison punishment); Cruz v- Beto,
405 U.S. 319 (1972) (First Amendment, equal pro­
tection); Lee v. Washington, 390 U.S. 333 (1968) 
(equal protection). No decision of this Court 
indicates that the views of a county jailer are 
entitled to unquestioning acceptance.



46

(1) jail security; (2) avoidance of disruptions 
caused by unscheduled "tours," and (3) protec­
tion of inmate privacy and against undue pre­
trial publicity.

1. Jail Security.
Jail security is certainly a legiti­

mate interest. But the district court found on 
more than ample evidence that restricting access 
in the way the sheriff does is not necessary to 
protect jail security and that access like that 
routinely afforded in other prisons and jails 
in the area would not jeopardize security (A. 
69). The sheriff has not challenged, nor could 
he challenge, the district court's findings as 
clearly erroneous. Fed. R. Civ. P.52. There 
is "substantial evidence in the record" demon­
strating that petitioner has "exaggerated" se­
curity concerns. See Pell v. Procunier, supra, 
417 U.S. at 827.—  ̂ And in any event the dis­
trict court's order expressly acknowledges the 
sheriff's authority to refuse all access if jail

33/ As for any purely subjective anxiety the 
sheriff may have, "in our system, undifferen­
tiated fear or apprehension of disturbance is 
not enough" to restrict First Amendment rights. 
Tinker v. Des Moines School District, 393 U.S. 
503, 508 (1969).



47

tensions might threaten security (A. 71).
Although access alone would not endan­

ger security, petitioner's brief asserts that 
permitting photography would create a risk 
because there are alarm and locking devices in 
the jail which should not be photographed. Pe­
titioner has not suggested who might disobey 
instructions not to photograph them, or why. 
This matter was never mentioned when the sheriff 
excluded KQED and others from any access (Tr. 
172,209). But in any event prisoners themselves 
can at their leisure sketch the devices in de­
tail , as pointed out by the district court (A. 
69; Tr. 117). Further, prisons like San Quentin 
of course have sophisticated security devices, 
and they have no problems in permitting news 
photography, even in maximum security sections 
(Tr. 147-48, 150). Filming news coverage in 
numerous j ails and prisons is routinely done 
without resultant security problems (Tr. 167-71, 
196, 216; A. 10, 13, 14-15, 64-65, 69). News 
photography was permitted in the institutions 
involved in Pell and Saxbe. Finally, petitioner 
testified that he would have no problem with 
newsmen using cameras on a press tour, as op­
posed to a public tour, "as often as the court



48

might deem suitable" (Tr. 111-12, 116). In
short, while the sheriff may determine that cer­
tain limitations on camera use are reasonably 
required, an absolute ban on cameras is not dic­
tated by jail security.

2. Disruption by unscheduled 
"tours".

The sheriff's most frequently-expressed 
concern is the inconvenience that press "tours" 
might cause if provided "on demand". Thus his 
brief emphasizes several times that "tours" dis­
rupt the "tight schedule" of inmate movements 
during the day and cause related administrative 
difficulties. He says that during a tour "in­
mates must be locked in their cells or otherwise 
removed from contact with the visitors” and that 
therefore jail movements "come to a halt" (Id.).

But all of this is built entirely on 
petitioner's own notion that any access neces­
sarily involves a cumbersome "tour." Nothing 
could be further from reality, as the sheriff 
well knows. The interest of KQED is not in hav­
ing "tours", and the district court order does 
not require any such thing. Conducting unwieldy 
guided tours was solely the sheriff's idea. 
KQED's main interest is in being able to cover



49

events of public interest as soon thereafter as
access can safely be provided. This involves
the opportunity for a reporter to spend a few
minutes at the scene (e.g. the escapee's hole
in the fence, the charred remains of the
dormitory, the new basketball court, the bleak
cell where the suicide took place, etc.). This
does not require locking up inmates or delaying

34 /
any inmate movement at a l l A c c e s s  for a 
specific and limited purpose does not involve 
any "tour." Nor does it entail any disruption, 
or doing anything different from what the record 
shows is the routine practice in the other local
iails and prisons, i.e., access on reasonable

n , 35/notice to cover a particular event.—
The district court's order, providing

34/ A large number of civilians -- social work­
ers , investigators, teachers, butchers, bakers, 
nurses, religious counselors -- come and go 
within and around the jail every day, without 
prisoners being locked up or normal movements 
stopping (Tr. 68-71).

35/ Nor is there likely to be any deluge of 
press requests. When San Quentin first opened 
its notorious maximum security section to re­
porters there was some initial interest, but no 
requests at all in the two months before the 
hearing in this case (Tr. 151-52).



50

for access "at reasonable times and hours" and 
authorizing the sheriff to lay down the ground 
rules for such access, fully protects the sher­
iff' s interest in avoiding administrative dis­
ruption.

3. Inmate privacy and pretrial 
publicity.

The sheriff's professed concern for 
protecting the privacy of the prisoners does 
not justify denial of access. The evidence 
shows that KQED and other press representatives 
do not photograph or interview prisoners with­
out their consent (A. 11; Tr. 150, 170-71, 
201-2), and the sheriff is free to make this a 
firm and formal requirement. Although 
petitioner also claims a desire to protect de­
tainees awaiting trial from pretrial publicity, 
this is a red herring. In the first place, he 
in fact permits photographs and interviews of 
pretrial detainees, regardless of any security 
or publicity problems, provided only that formal 
consent is obtained (Tr. 89, 91, 97, 118). In 
the second place, the right to a fair trial is 
the right of the accused, not the jailer. See 
Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 
(1976); Chicago Council of Lawyers v. Bauer,



51

522 F.2d 242, 250 (7th Cir. 1975), and cases 
cited. The sheriff is not under any duty to

Of. j
prevent pretrial statements.— ' Nor can he be 
permitted to use a "pretrial publicity” claim 
to suppress prisoner statements about the condi­
tions of their confinement -- the subject of 
this suit.

Finally, the record affirmatively shows 
that none of the sheriff's objections is in fact

36/ On the contrary, jailers sometimes collect 
pretrial statements for use against the crimi­
nal defendant. See, e.g. Lanza v . New York, 
370 U.S. 139 (1962). The "fair trial-free 
press" decisions relied on by the sheriff are 
not in point. In Mazzetti v. United States, 
518 F.2d 781 (10th Cir. 1975), the court merely 
upheld a rule against taking photographs in a 
courthouse, pointing out that the rule was in­
tended to insure a fair trial for defendants. 
(In addition, the photographer had in fact 
created an actual disturbance at the court­
house , and had taken pictures of prisoners with­
out their consent.) Tribune Review Publishing 
Co. v. Thomas, 254 F.2d 883 (3d"CiF. 'ig68y7_up“ 
held the same rule against taking photographs 
in and around the courtroom. Estes v. Texas, 
381 U.S. 532 (1965), and Sheppard v. Maxwell, 
384 U.S. 333 (1966), simply recognize the right 
of a criminal defendant not to have a massively 
publicized trial. All these fair trial cases 
emphasize the accused's right to a dignified 
and deliberative judicial setting. They do not 
apply to inquiries into conditions at a jail.



52

a problem. The record includes the experience 
of other jail and prison administrators and the 
considered opinion of experts in the field.
The Sheriff of San Francisco County (Tr. 
189-203) and the San Quentin official (Tr. 
143-65) dealt in concrete detail with all of 
petitioner's objections -- security, administra­
tive disruption and privacy. They demonstrated 
that admitting reporters on reasonable notice 
did not present any problems whatever. Finally, 
the experience of KQED and other reporters in 
covering events on the premises of many other 
jails and prisons shows that they can be permit­
ted to do their newsgathering job without inter-

37 /fering with any valid correctional interest.—
Thus, unconvinced that reasonable press 

access would harm any interest of the sheriff, 
the district court properly granted a prelimin­
ary injunction, and the Court of Appeals unani­
mously affirmed. Petitioner has presented no

37/ There is also the expert judgment of na­
tional authorities in the field -- the stand­
ards of the National Advisory Commission on 
Criminal Justice Standards and Goals, and the 
Policy Statement of the Federal Bureau of Pri­
sons (see pp. 14-15, supra) -- providing for 
open news access to correctional institutions.



53

reason why this Court should disturb the deci­
sions below.
III. The District Court Properly Found That 

The Sheriff's "Alternative Means of 
Communication" Do Not Serve The Same 
Purposes Or Meet The Public Need for 
Information On Jail Conditions.

Petitioner has been busily improving 
his public relations image at each stage of this 
litigation. Before he was sued, the sheriff's 
"policy" was clear and unequivocal -- complete

O  O  /

exclusion of both press and public.— - When
suit was filed, petitioner quickly announced 
the series of six monthly tours, as well as li­
beralized mail and visiting rules (A. 28-31). 
When it was brought out at the hearing on the 
preliminary injunction that the tours were com­
pletely booked within a week and so there was 
no other press or public access for the rest of 
the year (Tr. 116-17; see p. 7, supra), the 
sheriff announced that he wished to continue 
the tours for the next six months, and possibly

38/ Further, his jail rules provided for cen­
sorship of all correspondence, even letters of 
pretrial detainees, and forbade prisoners to 
mention the "names or actions" of any guard or 
other official (A. 19). Compare Procunier v. 
Martinez, 416 U.S. 396 (1974).



54

beyond, although he had not yet presented the 
proposal to the Board of Supervisors (Tr. 
81-82). He also testified that he would be wil­
ling to hold special tours for the press, with 
their cameras and with random interviews, "as 
often as the court might deem suitable" (Tr. 
111-12, 116). (The Sheriff has never explained 
why no such press tours have been announced or 
carried out.) When the district court issued a 
preliminary injunction, petitioner in his stay 
application declared that public tours would 
then be held twice monthly and offered to have 
photographs taken of scenes that had been con­
spicuous by their omission ("appendix" to Peti-

39 /tioner's Opening Brief, p. 2-3).—

39/ Most recently, in his petition for certior­
ari to this Court (p. 9), he asserted that re­
porters were occasionally being let in the jail 
for news coverage of "special events" like fires 
and escapes. The sheriff was apparently decid­
ing for himself what was "news" and either 
allowing or disallowing access. While this 
"spot news" contention has disappeared from pe­
titioner' s brief on the merits, KQED vigorously 
denies that it is being allowed access to the 
jail to cover news events, and we have never 
seen any rules or policy statements authorizing 
such coverage. (Information about a recent 
women's riot did not leak out to the public 
until nearly two weeks after the event. See 
Appendix to Brief in Opposition to Petition for



55

Here, much of the sheriff's brief is 
devoted to descriptions of prisoner mail, 
visiting and telephone rules, in addition to 
the guided tours. These are said to provide 
substantial access to jail prisoners, or by jail 
prisoners to outside persons. Petitioner's ar­
gument derives from the discussion in Pell of 
"alternative means of communication" available 
to prisoners. 417 II.S. at 823. The sheriff 
misses the point, however, because the Pell op­
inion shows that alternative means were relevant 
only to the prisoners' asserted right to be in­
terviewed by reporters, not to the journalists' 
asserted First Amendment interests. The Court 
declined to declare a new and unusual prisoner's

39/ continued.

Certiorari.) Even if the sheriff's assertion 
on "special event" coverage were true —  a 
matter this Court should surely not attempt to 
determine -- such ad hoc and standardless grant­
ing of special access would itself be constitu­
tionally suspect as permitting discrimination 
on the basis of "the content of the expression." 
Pell v. Procunier, supra, 417 U.S. at 828; see 
also Southeastern Productions Ltd, v. Conrad, 
420 U.S. 546, 553 (1975); Shuttlesworth v. 
Birmingham, 394 U.S. 147, 150-51 (1969); Main 
Road v. Aytch, 522 F.2d 1080, 1098 (3d Cir. 
1975).



56

right when there were both proven security dan­
gers and alternative ways for a prisoner to 
reach an outside ear. Even the existence of 
adequate means of reaching outsiders was not in 
itself conclusive of the prisoner's right. 
Pell, supra, 417 U.S. 823-24; see also Klein- 
dienst v^ Mandel, 408 U.S. 753, 765 (1972). 
Compare Linmark Associates, Inc, v. Township of
Willingboro, ___ U.S. ___, 97 S.Ct. 1614, 1618
(1977), where the Court unanimously rejected an 
argument that an ordinance restricting one means 
of communication (For Sale signs) was saved by 
the availability of alternative means (e.g. 
newspaper advertisements). The Court said, in 
terms directly applicable here, that there was 
serious question about the adequacy of the al­
ternative means to serve the intended purpose, 
and that the alternatives were "far from satis­
factory" because they were "less likely to reach 
persons not deliberately seeking" the informa­
tion. 97 S.Ct. at 1618. See also Virginia 
Board of Pharmacy v. Virginia Consumer Council, 
425 U.S. 748 (1976), where the Court pointed 
out that the restrictive prison rules in Procun- 
ier v. Martinez, supra, were not saved by the 
fact that the addressees of prisoner letters



57

"could have visited the prisoners themselves," 
and noted that alternative means of reaching 
intended recipients in other cases did not 
change the results. 425 U.S. at 757, n.15.

The "alternatives" advanced by peti­
tioner here are not intended to and could not 
conceivably serve the purpose of providing the 
public with timely and accurate information on 
jail conditions and important events there. As 
to mail, it is wholly unrealistic to expect that 
jail inmates, confined for a few days in the 
county jail,——'̂ will have either the interest 
or the ability (many are illiterate) to convey 
to anyone useful information about conditions 
at the jail. Almost 75% of the pretrial detain­
ees are in jail for five days or less (D.Exh.F, 
second page). Even assuming that a prisoner 
wrote to a reporter, no responsible journalist 
would publish unsubstantiated information from 
a prisoner's letter. As KQED's news anchorman 
testified, there must be an opportunity to get 
the "other side of the picture," to check the

40/ According to the Sheriff's evidence, pre- 
trial detainees spend an average of 10 days in 
the jail, and sentenced prisoners an average of 
32 days (Tr. 84-85).



58

story and to verify any prisoner allegations 
(Tr. 175, 186). Also, of course, prisoner let­
ters do not give either press or public any op-

41/portunity to view the conditions in question.—  
As for visiting, it is most unlikely 

that reporters (or any specially interested mem­
bers of the general public) would know any indi­
vidual prisoner to ask for at the jail. Even 
if they knew the identity of a prisoner or two, 
this would be of no help in investigating a par­
ticular event. Visiting hours for sentenced 
prisoners are limited to three hours on Sunday, 
and most pretrial detainees are hardly in the 
jail long enough for a visit. Also, of course, 
visiting a prisoner gives the visitor only a 
view of the visiting room, not the actual living 
conditions or the scene of the event at the jail 
(Tr. 72).— /

41/ Use of the telephone for collect calls has 
substantially the same defects, even assuming 
that any news organization accepted collect 
calls from prisoners.

42/ If a prisoner is a pretrial detainee, the 
sheriff allows a press "interview," as opposed 
to a "visit," provided that the reporter obtains 
the formal written consents of (a) the prisoner, 
(b) his attorney, (c) the District Attorney and



Perhaps the scene could be viewed on 
petitioner’s next guided tour. That depends on

42/ continued.

(d) the court having jurisdiction (A. 30). Ob­
taining all the required consents is both impos­
sibly burdensome and quite unnecessary (absent 
a proper "gag" order). Let us assume that a 
detainee wrote a letter to KQED making serious 
allegations of some wrongdoing at the jail. A 
reporter could write him back requesting prompt 
written consent for an interview and the name 
of his attorney. The reporter could then get 
the attorney's consent. But for unexplained 
reasons petitioner requires, in addition, the 
consent of the District Attorney. And finally, 
petitioner requires consent of the court. This 
means that the reporter may have to hire a law­
yer (a public station like KQED does not have 
in-house counsel), and hope to get the matter 
on the court’s busy calendar without undue 
delay. These additional required consents are 
solely the creation of the sheriff and are not 
imposed by any statute, regulation or court de­
cision. Nor, as explained at pp. 50-51, supra, 
are they necessary to serve any legitimate in­
terest of the sheriff. But they are well calcu­
lated to make interviews a virtual impossibil­
ity. They hardly promote the "alternative 
means of communication" claimed by petitioner. 
And even if an extremely persistent reporter 
obtained an interview, jail conditions and the 
scene of the event would still remain hidden 
from view. (Similar problems attend an attempt 
to get the facts from a recently released pri­
soner. Even if a reporter had the extraordinary



60

whether the guards choose to include it, a mat­
ter over which the tourists have no say. And 
even if it were included, it could not be photo­
graphed. Finally, as much as two weeks after 
the event, the scene might appear as scrubbed 
and bland as the photographs sold by petitioner.

The problems with the guided tours have 
been discussed above (pp. 8-10, supra). For a 
few citizens they do provide a look at the phy­
sical plant (with some notable exceptions).
But spiriting prisoners out of the way creates 
an unreal jail, more like a mausoleum. Prohibi­
ting simple questions of randomly encountered 
inmates cripples understanding of what is seen 
or what may have happened. Absolutely banning 
cameras leaves only petitioner's sterile stills 
of selected buildings and equipment. As Mr. 
Justice Powell recently said, the public is "the 
loser" when news coverage is limited to 
"watered-down verbal reporting, perhaps with an 
occasional still picture. . . . This is hardly

42/ continued.

fortune of locating such a person who had know­
ledge of the event in question, there would be 
no way to verify his information by checking 
the scene.)



61

the kind of news reportage that the First Amend­
ment is meant to foster." Zacchini v. Scripps-
Howard Broadcasting Co., U.S. , 97 S.Ct.

43/2849, 2860 (1977) (dissenting opinion).—
Probably the most serious problem with 

the tours is their very nature as scheduled and 
periodic. They are basically irrelevant to the 
need to cover an event of public concern and 
get timely and complete information to the gen­
eral citizenry. The event will not await the 
next scheduled tour.—  ̂ Exclusion except for
the tours necessarily means that important 
events will be missed, possible abuses suppres­
sed and the public left ignorant of matters of

43/ 64% of the American public now get most of 
their news "about what's going on the world 
today" from television news as opposed to all 
other sources. The Roper Organization, Chang­
ing Public Attitudes Toward Television and Other 
Mass Media, 1959-1976, 3 (May, 1977).

44/ As Mr. Justice Blackmun reasoned, consider­
ing a restriction on reporting by news media, 
First Amendment interests are infringed each 
day the restriction continues: "The suppressed
information grows older. Other events crowd 
upon it. To this extent, any First Amendment 
infringement that occurs with each passing day 
is irreparable." Nebraska Press Ass'n. v. 
Stuart, 423 U.S. 1327, 1329 (1975).



62

which they have a right to be informed.
CONCLUSION

"Sunlight is said to be the best of 
disinfectants." Louis D. Brandeis, Other 
People1s Money, 92 (1914). The district court 
order would let a little sunlight in the county 
jail. For the reasons stated above, it should 
be affirmed.

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