HOUCHINS, SHERIFF OF THE COUNTY OF ALAMEDA, CALIFORNIA v. KQED, INC., ET AL.
No. 76-1310
Supreme Court of the United States
Argued November 29, 1977—Decided June 26, 1978
438 U.S. 1
William Bennett Turner argued the cause for respondents. With him on the brief were Jack Greenberg, James M. Nabrit III, and Stanley A. Bass.*
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST joined.
The question presented is whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television.
I
Petitioner Houchins, as Sheriff of Alameda County, Cal., controls all access to the Alameda County Jail at Santa Rita. Respondent KQED operates licensed television and radio broadcasting stations which have frequently reported newsworthy events relating to penal institutions in the San Francisco Bay Area. On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. The report included a statement by a psychiatrist that the conditions at the Greystone facility were responsible for the illnesses of his patient-prisoners there, and a statement from petitioner denying that prison conditions were responsible for the prisoners’ illnesses.
KQED requested pеrmission to inspect and take pictures within the Greystone facility. After permission was refused, KQED and the Alameda and Oakland branches of the National Association for the Advancement of Colored People
The complaint requested a preliminary and permanent injunction to prevent petitioner from “excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally preventing full and accurate news coverage of the conditions prevailing therein.” On June 17, 1975, when the complaint was filed, there appears to have been no formal policy regarding public access to the Santa Rita jail. However, according to petitioner, he had been in the process of planning a program of regular monthly tours since he took office six months earlier. On July 8, 1975, he announced the program and invited all interested persons to make arrangements for the regular public tours. News media were given notice in advance of the public and presumably could have made early reservations.
Six monthly tours were planned and funded by the county at an estimated cost of $1,800. The first six scheduled tours were filled within a week after the July 8 announcement.1 A KQED reporter and several other reporters were on the first tour on July 14, 1975.
Each tour was limited to 25 persons and permitted only limited access to the jail. The tours did not include the disciplinary cells or the portions of the jail known as “Little
In support of the request for a preliminary injunction, respondents presented testimony and affidavits stating that other penal complexes had permitted media interviews of inmates and substantial media access without experiencing significant security or administrative problems. They contended that the monthly public tours at Santa Rita failed to provide adequate access to the jail for two reasons: (a) once the scheduled tours had been filled, media representatives who had not signed up for them had no access and were unable to cover newsworthy events at the jail; (b) the prohibition on photography and tape recordings, the exclusion of portions of the jail from the tours, and the practice of keeping inmates generally removed from view substantially reduced the usefulness of the tours to the media.
In response, petitioner admitted that Santa Rita had never experimented with permitting media access beyond that already allowed; he did not claim that disruption had been caused by media access to other institutions. He asserted, however, that unregulated access by the media would infringe inmate privacy,2 and tend to create “jail celebrities,” who in turn tend to generate internal problems and undermine jail security. He also contended that unscheduled media tours would disrupt jail operations.
With few exceptions,3 all persons, including representatives of the media, who knew a prisoner could visit him. Media reporters could interview inmates awaiting trial with the consent of the inmate, his attorney, the district attorney, and the court. Social services officers were permitted to contact “relatives, community agencies, employers, etc.,” by phone to assist in counseling inmates with vocational, educational, or personal problems. Maximum-security inmates were free to make unmonitored collect telephone calls from designated areas of the jail without limit.
After considering the testimony, affidavits, and documentary evidence presented by the parties, the District Court preliminarily enjoined petitioner from denying KQED news personnel and “responsible representatives” of the news media access to the Santa Rita facilities, including Greystone, “at reasonable times and hours” and “from preventing KQED news personnel and responsible representatives of the news media from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities.”
On interlocutory appeal from the District Court‘s order, pеtitioner invoked Pell v. Procunier, 417 U. S. 817, 834 (1974), where this Court held that “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” He contended that the District Court had departed from Pell and abused its discretion because it had ordered that he give the media greater access to the jail than he gave to the general public. The Court of Appeals rejected petitioner‘s argument that Pell and Saxbe v. Washington Post Co., 417 U. S. 843 (1974), were controlling. It concluded, albeit in three separate opinions,4 that the public and the media had a First and Fourteenth Amendment right of access to prisons and jails, and sustained the District Court‘s order.
II
Notwithstanding our holding in Pell v. Procunier, supra, respondents assert that the right recognized by the Court of Appeals flows logically from our decisions construing the First Amendment. They argue that there is a constitutionally guaranteed right to gather news under Pell v. Procunier, supra, at 835, and Branzburg v. Hayes, 408 U. S. 665, 681, 707 (1972). From the right to gather news and the right to receive information, they argue for an implied special right of access to
III
We can agree with many of the respondents’ generalized assertions; conditions in jails and prisons are clearly matters “of great public importance.” Pell v. Procunier, supra, at 830 n. 7. Penal facilities are public institutions which require large amounts of public funds, and their mission is crucial in our criminal justice system. Each person placed in prison becomes, in effect, a ward of the state for whom society assumes broad responsibility. It is equally true that with greater information, the public can more intelligently form opinions about prison conditions. Beyond question, the role of the media is important; acting as the “eyes and ears” of the public, they can be a powerful and constructive force, contributing to remedial action in the conduct of public business. They have served that function since the beginning of the Republic, but like all other components of our society media representatives are subject to limits.
The media are not a substitute for or an adjunct of government and, like the courts, they are “ill equipped” to deal with problems of prison administration. Cf. Procunier v. Martinez, 416 U. S. 396, 405 (1974). We must not confuse the role of the media with that of government; each has special, crucial
The public importance of conditions in penal facilities and the media‘s role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter these institutions, with camera equipment, and take moving and still pictures of inmates for broadсast purposes. This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control. Nor does the rationale of the decisions upon which respondents rely lead to the implication of such a right.
Grosjean v. American Press Co., supra, and Mills v. Alabama, supra, emphasized the importance of informed public opinion and the traditional role of a free press as a source of public information. But an analysis of those cases reveals that the Court was concerned with the freedom of the media to communicate information once it is obtained; neither case intimated that the Constitution compels the government to provide the media with information or access to it on demand. Grosjean involved a challenge to a state tax on advertising revenues of newspapers, the “plain purpose” of which was to penalize the publishers and curtail the publication of a selected group of newspapers. 297 U. S., at 251. The Court summarized the familiar but important history of the attempts to prevent criticism of the Crown in England by the infamous licensing requirements and special taxes on the press, id., at 245-247, and concluded that the First Amendment had been designed to prevent similar restrictions or any other “form of previous restraint upon printed publications, or their circulation.” Id., at 249.5
Mills involved a statute making it a crime to publish an editorial about election issues on election day. In striking down the statute, the Court noted that “a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,” 384 U. S., at 218. The Court also discussed the role of the media “as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.” Id., at 219. As in Grosjean, however, the Court did not remotely imply a constitutional right guaranteeing anyone access to government information beyond that open to the public generally.
Branzburg v. Hayes, supra, offers even less support for the respondents’ position. Its observation, in dictum, that “news gathering is not without its First Amendment protections,” 408 U. S., at 707, in no sense implied a constitutional right of access to news sources. That observation must be read in context; it was in response to the contention that forcing a reporter to disclose to a grand jury information received in
That the Court assumed in Branzburg that there is no First Amendment right of access to information is manifest from its statements that
“the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally,” id., at 684,
and that
“[n]ewsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded,” id., at 684-685.
Pell v. Procunier and Saxbe v. Washington Post Co. also assumed that there is no constitutional right of access such as the Court of Appeals conceived. In those cases the Court declared, explicitly and without reservation, that the media have “no constitutional right of access to prisons or their inmates beyond that afforded the general public,” Pell, 417 U. S., at 834; Saxbe, 417 U. S., at 850, and on that premise the Court sustained prison regulations that prevented media interviews with inmates.
The fact that the Court relied upon Zemel v. Rusk, 381 U. S. 1 (1965), in both Branzburg, 408 U. S., at 684 n. 22, and Pell, supra, at 834 n. 9, further negates any notion that the First Amendment confers a right of access to news sources. The appellant in Zemel made essentially the same argument that respondents advance here. He contended that the ban on travel to Cuba, then in effect, interfered with his First Amendment right to acquaint himself with the effects of our
“[T]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen‘s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.” 381 U. S., at 16–17. (Emphasis added.)
The right to receive ideas and information is not the issue in this case. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976); Procunier v. Martinez, 416 U. S., at 408-409; Kleindienst v. Mandel, 408 U. S. 753, 762-763 (1972). The issue is a claimed special privilege of access which the Court rejected in Pell and Saxbe, a right which is not essential to guarantee the freedom to communicate or publish.
IV
The respondents’ argument is flawed, not only because it lacks precedential support and is contrary to statements in this Court‘s opinions, but also because it invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes. Whether the government should open penal institutions in the manner sought by respondents is a question of policy which a legislative body might appropriately resolve one way or the other.
A number of alternatives are available to prevent problems in penal facilities from escaping public attention. The early penal reform movements in this country and England gained impetus as a result of reports from citizens and visiting com-
Unarticulated but implicit in the assertion that media access to the jail is essential for informed public debate on jail conditions is the assumption that media personnel are the
There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals’ approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems “desirable” or “expedient.” We, therefore, reject the Court of Appeals’ conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions.
“There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. [Citing Pell v. Procunier, supra.] The public‘s interest in knowing abоut its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
“The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolu-
tion, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.” Stewart, “Or of the Press,” 26 Hastings L. J. 631, 636 (1975).
Petitioner cannot prevent respondents from learning about jail conditions in a variety of ways, albeit not as conveniently as they might prefer. Respondents have a First Amendment right to receive letters from inmates criticizing jail officials and reporting on conditions. See Procunier v. Martinez, 416 U. S., at 413-418. Respondents are free to interview those who render the legal assistance to which inmates are entitled. See id., at 419. They are also free to seek out former inmates, visitors to the prison, public officials, and institutional personnel, as they sought out the complaining psychiatrist here.
Moreover, California statutes currently provide for a prison Board of Corrections that has the authority to inspect jails and prisons and must provide a public report at regular intervals.
Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government‘s control. Under our holdings in Pell v. Procunier, supra, and Saxbe v. Washing-
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
Reversed and remanded.
MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
MR. JUSTICE STEWART, concurring in the judgment.
I agree that the preliminary injunction issued against the petitioner was unwarranted, and therefore concur in the judgment. In my view, however, KQED was entitled to injunctive relief of more limited scope.
The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors.* Accordingly, I agree substantially with what the opinion of THE CHIEF JUSTICE has to say on that score.
We part company, however, in applying these abstractions to the facts of this cаse. Whereas he appears to view “equal access” as meaning access that is identical in all respects, I believe that the concept of equal access must be accorded more flexibility in order to accommodate the practical distinctions between the press and the general public.
That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively. A person touring Santa Rita jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail‘s sights and sounds to those who cannot personally visit the place, he must use сameras and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see.
Under these principles, KQED was clearly entitled to some form of preliminary injunctive relief. At the time of the District Court‘s decision, members of the public were permitted to visit most parts of the Santa Rita jail, and the First and Fourteenth Amendments required the Sheriff to give members of the press effective access to the same areas. The Sheriff evidently assumed that he could fulfill this obligation simply
The District Court found that the press required access to the jail on a more flexible and frequent basis than scheduled monthly tours if it was to keep the public informed. By leaving the “specific methods of implementing such a policy [to] Sheriff Houchins,” the court concluded that the press could be allowed access to the jail “at reasonable times and hours” without causing undue disruption. The District Court also found that the media required cameras and recording equipment for effective presentation to the viewing public of the conditions at the jail seen by individual visitors, and that their use could be kept consistent with institutional needs. These elements of the court‘s order were both sanctioned by thе Constitution and amply supported by the record.
In two respects, however, the District Court‘s preliminary injunction was overbroad. It ordered the Sheriff to permit reporters into the Little Greystone facility and it required him to let them interview randomly encountered inmates. In both these respects, the injunction gave the press access to areas and sources of information from which persons on the public tours had been excluded, and thus enlarged the scope of what the Sheriff and Supervisors had opened to public view. The District Court erred in concluding that the First and Fourteenth Amendments compelled this broader access for the press.
Because the preliminary injunction exceeded the requirements of the Constitution in these respects, I agree that the judgment of the Court of Appeals affirming the District Court‘s order must be reversed. But I would not foreclose the possibility of further relief for KQED on remand. In my view, the availability and scope of future permanent injunctive relief must depend upon the extent of access then permitted the public, and the decree must be framed to accommodate
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE POWELL join, dissenting.
The Court holds that the scope of press access to the Santa Rita jail required by the preliminary injunction issued against petitioner is inconsistent with the holding in Pell v. Procunier, 417 U. S. 817, 834 (1974), that “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public” and therefore the injunctiоn was an abuse of the District Court‘s discretion. I respectfully disagree.
Respondent KQED, Inc., has televised a number of programs about prison conditions and prison inmates, and its reporters have been granted access to various correctional facilities in the San Francisco Bay area, including San Quentin State Prison, Soledad Prison, and the San Francisco County Jails at San Bruno and San Francisco, to prepare program material. They have taken their cameras and recording equipment inside the walls of those institutions and interviewed inmates. No disturbances or other problems have occurred on those occasions.
KQED has also reported newsworthy events involving the Alameda County Jail in Santa Rita, including a 1972 newscast reporting a decision of the United States District Court finding that the “shocking and debasing conditions which prevailed [at Santa Rita] constituted cruel and unusual punishment for man or beast as a matter of law.”1 On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. That program also carried a statement by a psychiatrist assigned to Santa Rita to the effect that condi-
KQED requested permission to visit and photograph the area of the jail where the suicide occurred. Petitioner refused, advising KQED that it was his policy not to permit any access to the jail by the news media. This poliсy was also invoked by petitioner to deny subsequent requests for access to the jail in order to cover news stories about conditions and alleged incidents within the facility.3 Except for a carefully supervised tour in 1972, the news media were completely excluded from the inner portions of the Santa Rita jail until after this action was commenced.4 Moreover, the prison rules provided that all outgoing mail, except letters to judges and lawyers, would be inspected; the rules also prohibited any mention in outgoing correspondence of the names or actions of any correctional officers.
Respondents KQED, and the Alameda and Oakland branches of the National Association for the Advancement of Colored People,5 filed their complaint for equitable relief on June 17,
Since no special relief was requested by or granted to the NAACP, the parties have focused on the claim of KQED.
In a letter to the County Board of Supervisors dated two days after this suit was instituted, petitioner proposed a pilot public tour program. He suggested monthly tours for 25 persons, with the first tentatively scheduled for July 14. The tours, however, would not include the cell portions of Greystone and would not allow any use of cameras or communication with inmates. The Board approved six such tours. Peti-
An evidentiary hearing on the motion for a preliminary injunction was held after the first four guided tours had taken place. The evidence revealed the inadequacy of the tours as a means of obtaining information about the inmates and their conditions of confinement for transmission to the public. The tours failed to enter certain areas of the jail.9 They afforded no opportunity to photograph conditions within the facility,
Of most importance, all of the remaining tours were completely boоked, and there was no assurance that any tour would be conducted after December 1975. The District Court found that KQED had no access to the jail and that the broad restraints on access were not required by legitimate penological interests.11
The United States Court of Appeals for the Ninth Circuit affirmed, holding that the District Court did not abuse its discretion in framing the preliminary injunction under review.12 MR. JUSTICE REHNQUIST, acting as Circuit Justice, stayed the mandate and in his opinion on the stay application fairly stated the legal issue we subsequently granted certiorari to decide: “The legal issue to be raised by applicant‘s petition for certiorari seems quite clear. If the ‘no greater access’ doctrine of Pell [v. Procunier, 417 U.S. 817,] and Saxbe [v. Washington Post Co., 417 U.S. 843,] applies to this case, the Court of Appeals and the District Court were wrong, and the injunction was an abuse of discretion. If, on the other hand, the holding in Pell is to be viewed as impliedly limited to the situation where there already existed substantial press and public access to the prison, then Pell and Saxbe are not necessarily dispositive, and review by this Court of the propriety of the injunction, in light of those cases, would be appropriate, although not necessary.” 429 U.S. 1341, 1344.
For two reasons, which will be discussed separately, the decisions in Pell and Saxbe do not control the propriety of the District Court‘s preliminary injunction. First, the unconstitutionality of petitioner‘s policies which gave rise to this litigation does not rest on the premise that the press has a greater right of access to information regarding prison conditions than do other members of the public. Second, relief tailored to the needs of the press may properly be awarded to a representative of the press which is successful in proving that it has been harmed by a constitutional violation and need not await the grant of relief to members of the general public who may also have been injured by petitioner‘s unconstitutional access policy but have not yet sought to vindicate their rights.
I
This litigation grew out of petitioner‘s refusal to allow representatives of the press access to the inner portions of the Santa Rita facility. Following those refusals and the institution of this suit, certain remedial action was taken by petitioner. The mail censorship was relaxed and an experimental tour program was initiated. As a preliminary matter, therefore, it is necessary to consider the relevance of the actions after March 31, 1975, to the question whether a constitutional violation had occurred.
It is well settled that a defendant‘s corrective action in
In Pell v. Procunier, 417 U.S., at 834, the Court stated that “newsmen have no constitutional right of access to prisons or their inmatеs beyond that afforded the general public.” But the Court has never intimated that a nondiscriminatory policy of excluding entirely both the public and the press from access to information about prison conditions would avoid
In that case, representatives of the press claimed the right to interview specifically designated inmates. In evaluating this claim, the Court did not simply inquire whether prison officials allowed members of the general public to conduct such interviews. Rather, it canvassed the opportunities already available for both the public and the press to acquire information regarding the prison and its inmates. And the Court found that the policy of prohibiting interviews with inmates specifically designated by the press was “not part of an attempt by the State to conceal the conditions in its prisons.” Id., at 830. The challenged restriction on access, which was imposed only after experience revealed that such interviews posed disciplinary problems, was an isolated limitation on the efforts of the press to gather information about those conditions. It was against the background of a record which demonstrated that both the press and the general public were “accorded full opportunities to observe prison conditions,”16
The decision in Pell, therefore, does not imply that a state policy of concealing prison conditions from the press, or a policy denying the press any оpportunity to observe those conditions, could have been justified simply by pointing to like concealment from, and denial to, the general public. If that were not true, there would have been no need to emphasize the substantial press and public access reflected in the record of that case.17 What Pell does indicate is that the question whether respondents established a probability of prevailing on
Here, the broad restraints on access to information regarding operation of the jail that prevailed on the date this suit was instituted are plainly disclosed by the record. The public and the press had consistently been denied any access to those portions of the Santa Rita facility where inmates were confined and there had been excessive censorship of inmate correspondence. Petitioner‘s no-access policy, modified only in the wake of respondents’ resort to the courts, could survive constitutional scrutiny only if the Constitution affords no protection to the public‘s right to be informed about conditions within those public institutions where some of its members are confined because they have been charged with or found guilty of criminal offenses.
II
The preservation of a full and free flow of information to the general public has long been recognized as a core objective of the First Amendment to the Constitution.18 It is for this reason that the First Amendment protects not only the dissemination but also the receipt of information and ideas. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 756; Procunier v. Martinez, 416 U.S. 396, 408-409; Kleindienst v. Mandel, 408 U.S. 753, 762-763.19
Thus, in Procunier v. Martinez, supra, the Court invalidated prison regulations authorizing excessive censorship of outgoing inmate correspondence because such censorship abridged the rights of the intended recipients. See also Morales v. Schmidt, 489 F.2d 1335, 1346 n. 8 (CA7 1973). So here, petitioner‘s prelitigation prohibition on mentioning the conduct of jail officers in outgoing correspondence must be considered an impingement on the noninmate correspondent‘s interest in receiving the intended communication.
In addition to safeguarding the right of one individual to receive what another elects to communicate, the First Amendment serves an essential societal function.20 Our system of self-government assumes the existence of an informed citizenry.21 As Madison wrote:
“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce
or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” 9 Writings of James Madison 103 (G. Hunt ed. 1910).
It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of infоrmation about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.22
For that reason information gathering is entitled to some measure of constitutional protection. See, e. g., Branzburg v. Hayes, 408 U.S. 665, 681; Pell v. Procunier, 417 U.S., at 833.23 As this Court‘s decisions clearly indicate, however, this protection is not for the private benefit of those who might qualify as representatives of the “press” but to insure that the citizens are fully informed regarding matters of public interest and importance.
In Grosjean v. American Press Co., 297 U.S. 233, represent-
“[I]n the adoption of the [taxes] the dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs. ... The aim of the struggle [against those taxes] was ... to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government. Upon the correctness of this conclusion the very characterization of the exactions as ‘taxes on knowledge’ sheds a flood of cоrroborative light. In the ultimate, an informed and enlightened public opinion was the thing at stake.” Id., at 247.
Noting the familiarity of the Framers with this struggle, the Court held:
“[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The tax here involved is bad ... because, in light of its history and of its present setting, it is seen to be a deliberate and calculated device ... to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.” Id., at 250.
A recognition that the “underlying right is the right of the public generally”24 is also implicit in the doctrine that “news-
Here, in contrast, the restrictions on access to the inner portions of the Santa Rita jail that existed on the date this litigation commenced concealed from the general public the conditions of confinement within the facility. The question is whether petitioner‘s pоlicies, which cut off the flow of information at its source, abridged the public‘s right to be informed about those conditions.
The answer to that question does not depend upon the degree of public disclosure which should attend the operation of most governmental activity. Such matters involve questions of policy which generally must be resolved by the political branches of government.25 Moreover, there are unquestionably occasions when governmental activity may properly be carried on in complete secrecy. For example, the public and the press are commonly excluded from “grand jury proceed-
In this case, however, “[r]espondents do not assert a right to force disclosure of confidential information or to invade in any way the decisionmaking processes of governmental officials.”28 They simply seek an end to petitioner‘s policy of concealing prison conditions from the public. Those condi-
The reasons which militate in favor of providing special protection to the flow of information to the public about prisons relate to the unique function they perform in a democratic society. Not only are they public institutions, financed with public funds and administered by public servants,30 they are an integral component of the criminal justice system. The citizens confined therein are temporarily, and sometimes permanently, deprived of their liberty as a result of a trial which must conform to the dictates of the Constitution. By express command of the
Some inmates in Santa Rita—a substantial number—are pretrial detainees. Though confined pending trial, they have not been convicted of an offense against society and are entitled to the presumption of innocence. Certain penological objectives, i. e., punishment, deterrence, and rehabilitation, which are legitimate in regard to convicted prisoners, are inapplicable to pretrial detainees.34 Society has a special interest
In this case, the record demonstrates that both the public and the press had been consistently denied any access to the inner portions of the Santa Rita jail, that there had been excessive censorship of inmate correspondence, and that there was no valid justification for these broad restraints on the flow of information. An affirmative answer to the question whether respondents established a likelihood of prevailing on the merits did not depend, in final analysis, on any right of the press to special treatment beyond that accorded the public at large. Rather, the probable existence of a constitutional violation rested upon the special importance of allowing a democratic community access to knowledge about how its servants were treating some of its members who have been committed to their custody. An official prison policy of concealing such knowledge from the public by arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press protected by the First and Fourteenth Amendments to the Constitution.35
III
The preliminary injunction enterеd by the District Court granted relief to KQED without providing any specific remedy for other members of the public. Moreover, it imposed duties on petitioner that may not be required by the Constitution itself. The injunction was not an abuse of discretion for either of these reasons.
The Court of Appeals found no reason to question the specific preliminary relief ordered by the District Court. Nor is it appropriate for this Court to review the scope of the order.38 The order was preliminary in character, and would have been subject to revision before the litigation reached a final conclusion.
I would affirm the judgment of the Court of Appeals.
Notes
“As to the inmates’ privacy, the media representatives commonly obtain written consent from those inmates who are interviewed and/or photographed, and coverage of inmates is never provided without their full agreement. As to pre-trial detainees who could be harmed by pre-trial publicity, consent can be obtained not only from such inmates but also from their counsel. Jail ‘celebrities’ are not likely to emerge as a result of a random interview policy. Regarding jail security, any cameras and equipment brought into the jail can be searched. While Sheriff Houchins expressed concern that photographs of electronic locking devices could be enlarged and studied in order to facilitate escape plans, he admitted that the inmates themselves can study and sketch the locking devices. Most importantly, there was substantial testimony to the effect that ground rules laid down by jail administrators, such as a ban on photographs of security devices, are consistently respected by the media.
“Thus upon reviewing the evidence concerning the present media policy at Santa Rita, the Court finds the plaintiffs have demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on the merits, a favorable public interest, and a balance of hardships which must be struck in рlaintiffs’ favor.” App. 69.
I cannot agree with petitioner that the inmates’ visitation and telephone privileges were reasonable alternative means of informing the public at large about conditions within Santa Rita. Neither offered an opportunity to observe those conditions. Even if a member of the general public or a representative of the press were fortunate enough to obtain the name of an inmate to visit, access to the facility would not have included the inmate‘s place of confinement. The jail regulations do not indicate that an inmate in the minimum-security portion of the jail may enlist the aid of Social Service officers to telephone the press or members of the general public to complain of the conditions of confinement. App. 38. Even if a maximum-security inmate may make collect telephone calls, it is unlikely that a member of the general public or representative of the press would accept the charges, especially without prior knowledge of the call‘s communicative purpose.
Although sentenced prisoners may not be interviewed under any circumstances, pretrial detainees may, according to petitioner, be interviewed with the consent of the inmate, defense counsel, and prosecutor, and with an order from the court. Not only would such an interview take place outside the confines of the jail, but the requirement of a court order makes this a patently inadequate means of keeping the public informed about the jail and its inmates.
Finally, petitioner suggests his willingness to provide the press with information regarding the release of prisoners which, according to petitioner, would permit interviews of former prisoners regarding the conditions of their recent confinement. This informal offer was apparently only made in response to respondents’ lawsuit. Moreover, it too fails to afford the public any opportunity to observe the conditions of confinement.
Hence, the means available at the time this suit was instituted fоr informing the general public about conditions in the Santa Rita jail were, as a practical matter, nonexistent.
“The constitutional guarantee of a free press ‘assures the maintenance of our political system and an open society,’ Time, Inc. v. Hill, 385 U.S. 374, 389 (1967), and secures ‘the paramount public interest in a free flow of information to the people concerning public officials,’ Garrison v. Louisiana, 379 U.S. 64, 77 (1964). See also New York Times Co. v. Sullivan, 376 U.S. 254 (1964). By the same token, ‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ New York Times Co. v. United States, 403 U.S. 713, 714 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969).
“In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court went further and acknowledged that ‘news gathering is not without its First Amendment protections,’ id., at 707, for ‘without some protection for seeking out the news, freedom of the press could be eviscerated,’ id., at 681.” Id., at 832-833.
“Just so far as .. the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning, for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed.”
“No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.”
“There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that without secrecy no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution 134-139 (1937).”
“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” United States v. Procter & Gamble Co., 356 U.S. 677, 681-682, n. 6, quoting United States v. Rose, 215 F.2d 617, 628-629 (CA3 1954).
“In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment.” Saxbe v. Washington Post Co., 417 U.S., at 863-864 (POWELL, J., dissenting).
See also Branzburg v. Hayes, 408 U.S., at 726-727 (STEWART, J., dissenting).
In the context of fashioning a remedy for a violation of rights protected by the First Amendment, consideration of the role of the press in our society is appropriate.