*1 the fine imposing order The Commission’s reversed. al., Plaintiffs-Appellees, INC.,
KQED, et HOUCHINS, Individually and L.
Thomas capacity as Sheriff his official Defendant-Appellant. County,
Alameda
No. 75-3643. Appeals, Court of
United States
Ninth Circuit. 1, 1976.
Nov. In Banc
Rehearing Rehearing Dec.
Denied Booty, (argued), County
Kelvin H. Jr. Oakland, Cal., Counsel, defendant-appel- lant.
285
burg
(argued),
Hayes,
of
v.
408
665,
Bennett Turner
San
681-707,
William
U.S.
92
Francisco, Cal.,
plaintiffs-appellees.
for
2646,
S.Ct.
(1972),
[I]
Procunier
states that
grants the news media a constitutionally
news
right
media’s constitutional
access
gather news. See Branz-
protected
prisons or their inmates is co-extensive
*
Harry Pregerson,
The Honorable
United
“Indeed,
States
The Court observed:
the record dem-
Judge
District
for the
District of
Court
Central
that,
poli-
onstrates
under current corrections
California, sitting by designation.
cy,
general public
both the
and the
opportunities
prison
accorded full
to observe
Madigan,
128,
F.Supp.
Brenneman
343
133
contrast,
In
conditions.”
Id.
the Santa Rita
(N.D.Cal.1972)
described
at
conditions
completely
Jail was
closed to both the news
building
Greystone
facility
at the Santa Rita
as
public prior
filing
“truly
media and
deplorable.”
judge
of the
The district
held that
filed,
“shocking
debasing
present
appellant
conditions
suit. After
suit was
prevailed
there constituted cruel
unusual
inaugurated
monthly public
program
tours
punishment
man
or beast
matter of
Appellees presented
of Santa Rita.
evidence
law.”
people,
these tours were
limited
advance, prohibited
booked months
use of
Supreme
regulation
2. The
Court found
equipment, prohibited
cameras or sound
con-
limiting press access in Pell v. Procunier was
inmates,
versations with
and omitted views of
part
attempt by
“not
of an
the State
conceal
many parts
jail, including the
notorious
prisons
the conditions in its
or to frustrate the
Greystone Building.
investigation
press’
reporting
of those con-
U.S. at
ditions.”
court’s finding identically. The access needs ed nary injunctions differ. Media rights of both the Amendment First access, infringed ap- notice, on reasonable be desira- were the news media *3 Although newsworthy event, the in wake policy. the of a ble restrictive pellant’s explicitly public observing mention while the interest of the does not memorandum formal, applied by court jail the trial conditions be satisfied rights, public’s the Moreover, these whether tours. the test to determine scheduled administra- proper the problems public re- inherent in governmental tive infringed: were a rights large group A tour rights can be access differ. Amendment on First striction security greater threat and re- an creates if furthers only the restriction upheld jail personnel use quires the of more in- important governmental or substantial tour, single the while a supervise reporter, suppressing speech and unrelated terest officials, jail should cause mini- known of drastic means is the least restriction the mal, any, jail if interference to routine. interest. See furthering governmental groups equal both have an Although consti- 377, 367, O’Brien, U.S. v. 391 States United jails, of access to of because tutional (1968). 672 20 L.Ed.2d S.Ct. differing and administrative prob- needs protecting while injunction, preliminary lems, im- common sense mandates the the rights, also satisfies First Amendment rights of those correlative not plementation security interests in governmental be identical. privacy of inmates. The Sheriff jail and jail security exclude when can media access case, In the circumstances of this we time, threatened, place, make reasonable trial say cannot the court’s issuance of restrictions, appro- develop and manner an preliminary injunction was abuse of regulations that administrative priate prelimi granting Its order discretion. of reporters, identification quire searches of nary injunction is therefore affirmed. representatives, and consent from questions infringe- To determine photographs. for interviews and mates rights of the public of the correlative Having appel determined that by the media and the means infringement an policy lant’s restrictive was implemented, are rights to be the trial these rights, not court did of constitutional should consider kind of court access issuing injunction that, on its err the news media accorded and the face, greater prison grants prison access system, California state as dis- Procunier, the access accorded than in Peli cussed access guided facili public monthly prison system tours the federal as set accorded 1220.1B, Policy not stand for the ty. Pell v. Procunier does forth in No. Statement Appendix constitu- of which is A. copy the correlative attached as proposition A APPENDIX WASHINGTON, D. C. PRISON SYSTEM FEDERAL NUMBER STATEMENT POLICY 1220.1B DATE NEWS MEDIA WITH CONTACTS SUBJECT: 7/1/76 establish, 2. recog- trial POLICY. The Bureau of Prisons To for a 1. PURPOSE. 31, 1976, establishing July desirability policy 1—December nizes the period greater respect of Prisons with that affords access to Bureau policy operations. policy its about to the news media. news political, religious, news commercial, or provide publicity for inmates or social affairs. designed but special privileges for the by reporters Interviews and others public. to insure a better informed rather 4a(l), may not included in permitted interviews, correspondence in a by special only arrangement and with setting, regulated must be to insure approval of the Warden. orderly insti- operation and safe regulations apply These to all inmates tution. Federal institutions. When an inmate in any facility is confined non-Federal Policy AFFECTED. 3. DIRECTIVE facility or state regula- local rules and 1220.1A and 1220.6/7300.96 Statements will govern. tions Policy superseded Statement. PROCEDURE, *4 b. Institution Visits. Application. a. (1) Representatives of the news oth- and policy of this state- (1) purposes the For are encouraged er media to visit Bureau shall of news media representatives purpose institutions for the preparing of following: defined as the be reports about facilities, pro- institutional in primarily employed who are Persons grams and activities. Media representa- reporting gathering of or the business tives make advance appointments as a (a) newspaper qualifying a for news During visits. for institutional emer- newspaper in the com- circulation general gency, and for a reasonable time there- publishes, (b) news to which it munity after, may the Warden suspend all such national circulation having a magazines visits. media general being by sold newsstands (2) representatives media When visit in- circulation, (c) and mail nation- stitutions, photographs programs of and services, (d) radio al or international news taken, may be repre- activities and media programs news of stations television and may meet of in- groups sentatives Federal Communication Commis- holding engaged in programs authorized mates sion Licenses. activities. Inmates and have the in- currently confined as Persons (still, photographed, to be movie or not may employed not as or used mates video), have to their voices policy under this statement. reporters by the Visiting media. represent- corded newspaper “general of A is one circula- shall be required permis- atives to obtain among general it circulates the before photographing recording tion” if sion or publishes gener- and if it news of a the voices of inmates in au- participating A general programs al character and of interest. thorized and shall activities newspa- to whether key names, test determine a be advised that use of identifiable as a qualifies inmates, per recordings of and voice photos encouraged, but if taken are not or made Page signed must be releases the inmates 1220.1B placed respective in their files. 7/1/76 (3) The Bureau objec- of Prisons has newspaper is to de- no “general circulation” to visits representa- tion paper qualifies whether for termine the to schools or in tives business establishments legal of notices purpose publishing the employ community which offenders in it is or community which located for the programs purpose viewing of- It it distributes. to which area community programs. fenders It a to be newspaper held that for generally responsibility of the newspaper general in law a considered circulation, qualified publish Page to and so be notices, it contain items 1220.1B legal interest to 7/1/76 general interview,
As prerequisite a inmate must authorize the institution permission obtain to representatives respond to comments made in staff to in advance. employer school to release information to interview ap- above paragraph outlined rules the news media relative to inmate’s situation. community ply comments. Correspondence. c. Page 4 representa- may write inmate (1) An IB title, tives, specified by name 7/1/76 Corre- publications. other representative the news media If may be sent newsman a spondence personal to conduct interview at wishes Box, Mail through the Prisoners institution, and makes a written re- correspondence. for provides unopened quest the Chief Executive directed Of- corre- and labeled identified properly All authorization, ficer the institution representatives qualifying spondence permitted subject it will be to the condi- news media shall forwarded policy tions of this statement. in- directly, promptly, sealed without (3) Representatives of the news media at to If is doubt whether spection. there particular request interview qualifies, institution representative request mate. The shall be made in writ- public infor- Bureau’s contact the should Warden of ing to the with- *5 Central Office. officer in the mation period in a reasonable normally time— news media or of the (2) Representatives prior within 24 to hours— correspon- may initiate publications other for the quested time interview. inmate. Incom- with a particular dence (4) by will The inmate be notified correspondence from ing request institution of the interview inspected will be for publications other or by be agree interviewed signing contraband, content which is like- and for (attachment 3) form before the consent activity, or conduct promote illegal toly request will be considered. The written regulations. A re- contrary to Bureau shall, cases, or denial in all consent be letter returned to the au- will be jected placed the inmate’s central file. thor, explanation with a for the brief (5) will request normally approved be A will also be noti- rejection. author within disapproved or 24 to 48 hours. An rejec- or may protest that he she fied may any be disapproved interview for tion, complaint will be referred reasons, following provided who official other than individual any disapproval: documents such Warden disapproved correspondence originally (a) representative, news media or review. for organization which the news he or she receive com- may The inmate agree does not represents, condi- value, nor anything of for cor- pensation, has, policy this or tions established or with the news respondence interviews past, failed to abide the re- in the 4a(l). paragraph defined in quired conditions. letter, (4) A transmittal similar (b) physically The inmate is or mental- sample, be attached to the will attached ly participate. This unable letter, Mail Box Prisoners outgoing by a supported medical officer’s state- mail will be sent properly labeled (a may psychologist be used to working government at ex- day, each placed verify incapacity) mental pense. record, inmate’s substantiating in the Interviews. Personal for disapproval. d. the reason (under is a representative (c) juvenile 18) inmate or a an inmate (1) Either request written consent has not may initiate a been of the guardian. his parent or at an institution. personal interview obtained and shall be part
tion basis made a policy institution’s juvenile parents covering inmate’s or subject. If the their Due to the guardians special security, custodial, are not known or ad- unknown, supervisory are the Warden of requirements dresses necessitated interviews, notify repre- the institution shall such an inmate in segrega- tion, restricted, holdover, of the news media of the sentative hospital or sta- juvenile, as a and shall may inmate’s statute tus be limited to a one-hour inter- per then consider authorization after view month. subject Interviews will not be
placing copy of the inmate’s written to audi- monitoring tory supervision. consent in his file. (8) Photographs or audio or video record- interview, (d) opinion in the Such ings may be taken during interviews institution, the Warden of the would with the accordance conditions outlined in endanger the health or 4b(2). If the Warden of the institution Page 5 presence video, determines that 1220.IB film, or audio equipment personnel 7/1/76 likely would be to create a disruption interviewer, safety of the or would institution, equipment within the probably cause serious unrest or dis- may be personnel limited. For example, good turb the order of the institution. inter- in the case of (e) pending The inmate is involved in a Page 6 having juris- court action and the court 1220.1B the matter diction over has issued a 7/1/76 “gag rule.” In the case of unconvicted visiting views conducted rooms which (including competency commit- persons frequently crowded, or in visiting 4246) ments under 18 U.S.C. of maximum security institutions, rooms institutions, held in Federal interviews equipment the Warden limit the should not be authorized until there is cameras or hand held recorders. *6 having juris- with the court clearance (9) conjunction If in with an interview of diction, ordinarily through the At- U.S. an individual inmate the news media rep- districts, torney’s office. In some there resentative wishes to tour the institution may standing be a authorization for photographs and take or make recordings interviews, in the absence of individual inmates, other he she must comply orders,” districts, “gag but in other all procedures 4b(2) set out in with pretrial may inmates need to be cleared for upon request interviews. e. Press Pools.
(f) “protection” The inmate is a case Whenever the frequency of requests for revelation of or her his where- interviews and visits reaches a volume as endanger would his or abouts her safe- is determined the Warden to warrant ty- limitations, press pool may be estab- id) Interviews will be held in the institu- situation, lished. In this all news media visiting room during tion normal week- representatives having requested inter- day hours unless the business Warden of views or visits which have not been con- the institution determines that another ducted shall be notified that rep- selected location more suitable. Interviews will resentatives shall be admitted to the in- limited to two one-hour per be interviews stitution to conduct interviews under per month. inmate If the Warden guidelines deter- such as the Warden establish- imposing mines interviews are a seri- generated es. All material from such a on the drain staff or use of the ous facili- press pool shall be made available to all ties, media, interview time for the entire institu- without right news publi- of first tion be limited. Such a limit shall be cation or broadcast. The pool shall composed on an of no more institution-by-institu- established be than one repre- sentencing, arrival, date of past move- writs, general transfers following ments via from each of sentative assignments, eligibility parole stitutional present. representatives The groups date, of expiration members of the and date of sentence. by the be selected shall files are confi- groups. Other contents inmate respective Requests for additional informa- dential. news (1) national and international The about individual inmates shall be tion services; the Central The Ward- ferred to Office. networks (2) television and radio institution, designated each or his en of outlets; solely responsible shall be representative, newspapers; (3) magazines The news press. Other staff contacts for and, refer press inquiries shall all to members community local media in the All designee. Warden his where the is located. institution f. Release Information. g. Special Conditions. incidents (1) Announcements of unusual (1) Authorization for institution visits or media as be made local news shall shall be upon interviews conditioned byor possible by as the Warden promptly representative certifying designated by him. a staff member she is he or familiar with the rules will for prepare a statement regulations governing his conduct stating the briefly release to during interviews and visits and that he messages The text such facts. agrees comply or she with them. Cer- part to the Bureau as transmitted shall be tification done of an by use affi- required which reports on the incidents to davit similar attached. they reasonably relate. If it be as- can Bureau responsibility has a services or wire sumed rights protect of all inmates and inquiry at press will make Washington expected, of its staff. It members as a Office, the text should be Central authorizing interviews and condition to the Central Office communicated making facilities available to conduct an telephone. interview, that the represent- Bureau related to (2) Announcements will make a attempt ative reasonable institutional Policy, changes allegations verify any regarding an in- missions, type popula- of inmate mate, member, staff or institution and Page will provide opportunity respond IB allegation might published *7 7/1/76 prior or broadcast to such distribution. tion, well as announcements of (3) Representatives of the news media will be changes personnel, executive only pri- will collect information from Central Office. Press made mary source. Bureau considers it subjects be referred quiries improper and a violation of this highly public information officer of the personal to obtain and use informa- policy Washington. of Bureau Prisons one from inmate about another in- tion an inmate that is a (3) Information-about refuses who interviewed. mate provided record will be matter Page representative the Warden or his 1220.1B upon representatives the news media 7/1/76 be limit- request. Such information shall institution, number, in an name, representa- While register ed to inmate’s subject tives of the news media are place it is (provided of incarceration race, rules applicable regulations protection), age, of- confidential institution. convicted, where Discussions or comments re- court fense for rule, garding sentenced, sentence, applicability regula- length date
views with the news media shall be amend- promptly compliance should be conducted with ed be in or order this tion institution, Any policy issuance. modification of this administrator of the must be submitted to the Assist- statement specifically designated by him. person Director, Programs Correctional ant Divi- Interpretations. h. sion, days receipt within of this statement. meaning appli- policy as to Any question will be statement policy cation Norman A. /s/ Carlson of the Bureau Director by the resolved NORMAN A. CARLSON Prisons. Director, Bureau of Prisons Commissioner, Federal Prison Policy Indus- Institution State- ACTION. tries, Inc. inter- relating correspondence ments *8 Box for Prisoners Mail placed our letter was attached opened nor has been neither
forwarding you. The letter which this insti- problem over If writer raises inspected. jurisdiction, you may wish Prisons has or the Bureau of tution Depart- Prisons, Director, Bureau of to mo or to write Washington, Justice, D.C. questions. him inmate, and ask You write back contraband, any and for content inspected for will be Your letter which violates illegal conduct or conduct incite which would permissible under personal interviews are Also, rules. conditions. certain encourages institu- to visit Prisons
The Bureau of programs If correctional tions, and learn about activities. please contact me. you this, do wish to anything of compensation, nor may not receive
Inmates If interviews with the media. correspondence or value, inmate or a staff member writing you names another person request you advise us of that fact we correspondence, in his background provide information publication. We will before its possible. specific whenever comments *9 forwarding, correspondence ad- encloses, for writer If me, the enclosure to please return addressee, another dressed Director. or in a withdrawal of
Non-compliance with the above result or received from All materials sent to an inmate not such access. policy, herein, by Bureau constitute contra- authorized meaning which provides U.S.C. band within into, up years. This includes the introduction to 10 sentence anything taking from, any correctional whatsoever regulation. contrary rule
WARDEN *10 294 713,
DUNIWAY, (concurring): 2140, Judge U.S. 91 29 822], Circuit S.Ct. L.Ed.2d quite is thing suggest It another that concur, having I serious but I confess imposes upon govern- the Constitution result, not because I think about the doubts duty ment the affirmative to make avail- wrong because I principle, it is in but that journalists able to sources of information reconciling in great difficulties have not available to members of the Pell v. Procuni- decisions result generally. proposition sup- That finds no 2800, 817, er, 1974, 94 41 417 U.S. S.Ct. port in the words of the Constitution or Washington v. Post 495 and Saxbe L.Ed.2d According- decision of this Court. 843, 2811, 41 Co., 1974, 94 S.Ct. 417 U.S. 405.071 does not ly, deny since § beyond it 514. I think clear L.Ed.2d sources of access to information available preliminary that the argument possibility of the general public, members we hold appeal which the is taken injunction from not abridge protection it does KQED greater and other media grants to First and granted Rita Jail than is Fourteenth Amend- Santa access 834-35, 417 public. guarantee. ments U.S. at 94 at 2810. S.Ct. this result with the I cannot reconcile Pell, supra, Washington Saxbe, supra, decisions 417 also U.S. at See cases, Post, supra. they As I read these S.Ct. proposition: for this stand that, happen I to believe as to most issues “ have no constitu- . . . Newsmen public importance, and assuming right of access to the scenes of tional accepts one the media-created notion that general public or disaster when the crime there is such an animal as a constitutionally Branzburg Hayes, supra, excluded.” protected “public’s right to know” and fur- 684-685, Similarly, at 2658. at S.Ct. assuming ther that the media somehow em- have no constitutional newsmen body “right,” then the media have a prisons beyond access to or their inmates protected preferred right to access to infor- general public. that afforded the public’s about the mation business. This is not, how- . The Constitution does that, proposition on the in our based mod- ever, require government to accord the urban, ern, overpopulated, complex and information not press special access to intimidating and alienated somewhat socie- public general- by members of shared only ty, distinguished thing say journalist that a It is one ly. alienated, submerged, often and often out of information free to seek sources individual, frightened, can be counted on to general of the to members not available out dig and disseminate the facts about the public, that he is entitled to some consti- public’s “Watergate” business. Witness confidentiality protection tutional its consequences. remarkable sources, Branzburg v. Hayes, of such cf. IBut cannot reconcile'these notions with cannot supra, government and that Pell, express basis for the decisions in publication of news emanat- restrain Post, supra, Washington supra. and in I New York ing from such sources. Cf. States, supra like to assume that those Co. v. United would decisions Times [403 *11 literally, prisoners. I find and taken but To the extent private to be that a are not assumption. support that person them to nothing properly in would be barred from inter- they that the result dubious about viewing prisoners I am entering portions Yet from me to be It seems to require. prison to the private, seem that are the news media governing regulations that obvious media can also be barred. Neither Pell nor that the media jail, assuming to a application access involved the regula- Saxbe to such along public, with the right, have imposing tions the same standards on news gov- access, regulations must differ from personnel and gener- members of the It large. at is erning public access the in both public; al instances the had representatives thing say to that one greater general than public. latitude the who can are not numerous and who The purport Court did not to address the screened, able to inter- should be readily whether question news media could be con- etc., inmates, pictures, quite view take and constitutionally regulations fined to control- thing any that one of the say to another ling prisons prisoners access to or to that inhabitants of the Fran- million San several govern group general tours the public. Area, the Bay one of million cisco I Although disagree do not with Judge County, should of Alameda inhabitants so that, Pregerson’s statement under Pell and rights. The administrative the same have Saxbe, “the news media’s constitutional obviously two are by the posed problems right prisons of access to or their inmates is different, ought recognize to and the law public’s right,” co-extensive with the I do Pell, supra, I read But as differences. the the helpful not believe that statement is in cases, Post, supra, those Washington and any description pub- of what the absence differences, these ex- recognizing from far right is or right lic’s how the is to be Accordingly, I disregard them. pressly vindicated. doubt, I think not because express separate, but questions Two related are that the to, I think ought I but because (1) involved: What kind of information require it. decisions Supreme Court’s prisons prisoners public about and the does Or, to know? put have a to HUFSTEDLER, Judge (concur- Circuit differently, question from what kind specially): ring prisons prisoners about formation and (1974) v. Procunier holdings of Pell public should be excluded? What 495, 2800, 817, 41 L.Ed.2d 417 U.S. S.Ct. can imposed kinds of limitations on the Washington Post Co. and Saxbe public upon and on the news media 514, 843, 94 41 L.Ed.2d S.Ct. 417 U.S. means which the information to which appeal. on directly not involved public gathered? is entitled can be interpretation is the thorny question in Pell that “newsmen broad statement recognized The Court in Pell that condi- right of access to no constitutional have prisons tions in our Nation’s are matters of beyond that afford- or their inmates prisons great public importance about which the general public.” ed end, public should be informed. To that public’s right knowledge to about the condi- regula- Pell to mean that I do not read prisons prisoners very tions exten- and controlling ac- that are reasonable in tions Information not sive. should be curtailed general prisoners by prisons to cess except reasonably necessary to the extent Amend- always pass the First public will prisoners’ per- to shield small store of regulations are test when the same privacy, protect physical context, sonal securi- the news media. In imposed on prison, prisoners, Saxbe, ty of the rationale means Pell and I read prison personnel, prison per- and to allow give the First Amendment does not enough privacy sonnel and administrative right of access to any special permit effectively them per- that is not control to prisoners and none prisons or eyes their duties. reasonably necessary public to serve the form As the and ears of being prisons public, about newsmen are entitled to see and informed interest involve everything they within the identical practical problems. hear general is entitled to public which the kinds of visits provid- Both are methods of about public entitled to ing be informed. is not information about say everything prisoners. the inmates mission, know The media goes prison. however, in the everything degree, though do or different instance, entitled to kind, is not the display For to a tour group. be- the contents of the conversations gather, know The newsmen’s function is to adviser, religious collate, inmate his transmit to a wide tween *12 wife, his have a tran- lawyer, or nor to all of the which his audience information ad- prison an executive to script public prison session is entitled about know con- ministrators, nor private might to the combination A group know tour ditions. have prison personal ability gather locks. interests or better similar informa- security discipline, newsmen, and and privacy, prison tion than but it would be rare management training of the that effective combination of and the outweigh general respects public’s enjoyed by these means transmission the news con- being prison informed about media would be found in a tour group. interest An media, for the surrogates prison News as view of adequate ditions. conditions is un- claim en- public, likely cannot constitutional if the observer is confined to the acquire prisons titlement information areas and the times of visitation general public appropriately appropriate are which the is that for conducted tours. out, Judge Duniway points excluded. As the adminis- problems posed by trative newsmen and the information to be Assuming that groups tour are very different. For in- gathered public is of a kind is stance, public is entitled to know about know, is fo- question then entitled of food kind and served means which the informa- on cused under circumstances it is prepared. Here, acquired. to be we con- tion very guide It would difficult a tour solely gathering with information cerned through all group steps of the of service Prisons, prison. public like other inside preparation disruption and without serious institutions, have areas from which some kitchen, the service but a small represented by pri- whether one public, personnel of media crew could adequately citizen or the news vate member of report observe proceedings without must be barred at least some Moreover, interference. undue it should be no more do time. A warden could prisons obvious that candid view of private always job his if his office was possible is not prison life if both the news public display, judge than if he were could a general are limited to perpetual in his obliged open to hold house glove inspections white at hours and on however, addition, prisons In chambers. days by prison scheduled administrators for special problems do not have present n own convenience. their counterparts in institu- other exact security, poten- discipline, where tions agree Pregerson Judge I omnipresent. Regu- are not as tial violence injunction preliminary issued the district controlling prisons and to lations access to teaching is consonant court with the of Pell course, take prisoners, of can and should Saxbe. into account. special circumstances these regula-
However, it does not follow that the circum- that are reasonable under
tions applied touring groups
stances applied are also reasonable as personnel. ac- public tours and news media
Guided do purposes do not serve nor
cess identical