Kqed, Inc. v. Thomas L. Houchins, Individually and in His Official Capacity as Sheriff of Alameda County

546 F.2d 284 2 Media L. Rep. 1115 KQED, INC., et al., Plaintiffs-Appellees, v. Thomas L. HOUCHINS, Individually and in his official capacity as Sheriff of Alameda County, Defendant-Appellant. No. 75-3643. United States Court of Appeals, Ninth Circuit. Nov. 1, 1976. Rehearing and Rehearing In Banc Denied Dec. 22, 1976. 1 Kelvin H. Booty, Jr. (argued), of County Counsel, Oakland, Cal., for defendant-appellant. 2 William Bennett Turner (argued), of San Francisco, Cal., for plaintiffs-appellees. 3 Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PREGERSON, * District Judge. PREGERSON, District Judge: 4 This is an appeal from the trial court's issuance of a preliminary injunction restraining appellant, the Sheriff of Alameda County, California, from depriving appellees of their First and Fourteenth Amendment rights by "excluding as a matter of general policy . . . responsible representatives of the news media from the Alameda County Jail facilities at Santa Rita, including the Greystone portion thereof. . . . 1 To allow "full and accurate coverage" of jail conditions, the preliminary injunction requires that the reporters be given access to Santa Rita "at reasonable times and hours,"…

This is an appeal from the trial court’s issuance of a preliminary injunction restraining appellant, the Sheriff of Alameda County, California, from depriving appellees of their First and Fourteenth Amendment rights by “excluding as a matter of general policy . . . responsible representatives of the news media from the Alameda County Jail facilities at Santa Rita, including the Greystone portion thereof. . . . 1 To allow “full and accurate coverage” of jail conditions, the preliminary injunction requires that the reporters be given access to Santa Rita “at reasonable times and hours,” and that they be allowed to use photographic and sound equipment and to interview inmates. The specific method of implementing media access was left to the Sheriff’s determination, and the Sheriff was given discretion to exclude the media when jail tensions made such access dangerous. The question presented on appeal is whether the terms of this preliminary injunction, entered after a full evidentiary hearing, constitute an abuse of the trial court’s discretion.

[I] Clearly, the First Amendment grants the news media a constitutionally protected right to gather news. See Branzburg v. Hayes, 408 U.S.…

(concurring):

I concur, but I confess to having serious doubts about the result, not because I think that it is wrong in principle, but because I have great difficulties in reconciling the result with the decisions in Pell v. Procunier, 1974, 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 and Saxbe v. Washington Post Co., 1974, 417 U.S. 843 , 94 S.Ct. 2811 , 41 L.Ed.2d 514 . I think it clear beyond the possibility of argument that the preliminary injunction from which the appeal is taken grants to KQED and other media greater access to the Santa Rita Jail than is granted to the public.

I cannot reconcile this result with the decisions in Pell, supra, and Washington Post, supra. As I read these cases, they stand for this proposition:

See also Saxbe, supra, 417 U.S. at 850, 94 S.Ct. 2811 .

I happen to believe that, as to most issues of public importance, and assuming that one accepts the media-created notion that there is such an animal as a constitutionally protected “public’s right to know” and further assuming that the media somehow embody that “right,” then the media have a protected preferred right to access to information about the public’s business. This is based on the…

(concurring specially):

The holdings of Pell v. Procunier (1974) 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 , and Saxbe v. Washington Post Co. (1974) 417 U.S. 843 , 94 S.Ct. 2811 , 41 L.Ed.2d 514 , are not directly involved on this appeal. The thorny question is the interpretation of the broad statement in Pell that “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.”

I do not read Pell to mean that regulations that are reasonable in controlling access to prisons and prisoners by the general public will always pass the First Amendment test when the same regulations are imposed on the news media. In context, as I read Pell and Saxbe , the rationale means that the First Amendment does not give news media any special right of access to prisons or to prisoners and none that is not reasonably necessary to serve the public interest in being informed about prisons and prisoners. To the extent that a private person would be properly barred from interviewing prisoners or from entering portions of the prison that are private, the news media can also be barred. Neither Pell nor Saxbe involved the application of…