Houchins v. KQED Inc. – Oral Argument – November 29, 1977

Media for Houchins v. KQED Inc.

Audio Transcription for Opinion Announcement – June 26, 1978 in Houchins v. KQED Inc.

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Warren E. Burger:

We hear arguments next in number1310, Houchins against Station KQED.

Mr. Booty you may proceed when you are ready.

Kelvin H. Booty, Jr.:

Thank you Your Honor, Mr. Chief Justice and may it please the court.

The question presented in this case is, must the sheriff give greater access to his county jail facility to the media than he gives to the public?

The purpose of the access in this case is to gather information.

The District Court in this case required that certain access be given to the media.

There was no requirement that similar access be given to the public and there was no determination by the District Court that the public access was inadequate in any way.

The required media access is as I say greater than the sheriff gives to the public.

I would like to discuss briefly with the Court what that public access is.

First of all it is mail, access by mail, there is no censorship, letters are not read.

They are subject to inspection only.

John Paul Stevens:

Mr. Booty can I interrupt with one question?

Is it not the first question whether there was a violation of law that entitled any remedy which requires an examination of the situation at the time the law it was brought.

Should not you not tell us what kind of access there was when the proceeding started?

Kelvin H. Booty, Jr.:

Yes Your Honor.

All of the access that I am discussing except for the public tours had in fact started when the proceeding started.

So I will answer Your Honor’s question in that way.

The mail was there at the time the proceeding started, as I say it was – if the inmate lacked cash to pay for stamps or postage or anything like that, that was provided.

Secondly at the time the proceeding started and after there is visiting, ample visiting.

It is unquestioned that it is ample there are no categories of persons who may visit.

They need not be members of the family or anything else.

Anyone including a reporter could visit.

There are some restrictions on those who have been in prison or those who are under18, the prison restriction stems from provisions in the California Penal Code.

Again at the time the proceeding started there was access by telephones for those who were in the maximum security facility.

There was telephone access on a collect basis to anyone.

The phone lines did not go through the sheriff’s department in anyway they went right to the telephone company.

So there was no monitoring, no capacity for us to find out who was called?

What was said, nothing totally open telephones.

Other than in the maximum security facility telephone access was through the correctional services or officers.

Again Mr. Justice Stevens at the time the proceeding started there were interviews with pretrial detainees available.

Kelvin H. Booty, Jr.:

Those could be done, in fact they would have been done typically off the premises.

Those could have been photographed, tape recorded.

They would be private; no one from the sheriff’s department would be there.

The requirement there is that consents previously be obtained from the inmate himself, from his counsel, from the District attorney and from the court having jurisdiction over the trial.

What was not present at the time the proceedings commenced were the tours.

However as I believe, it is in Appendix page 10 — beg Your pardon page 19 of the Appendix.

I am reading from the affidavit of Mr. Turner who was counsel for the plaintiffs then and now as on June 10 a week before the proceedings were filed, he spoke again with me and I told him about the tour.

So for the situation, at the time the proceedings commenced was that the tours were planed and scheduled and it was well known to everyone including these plaintiffs, that they in fact would begin.

It is true that they had not in fact begun.

It was necessary for the Sheriff to secure funding from the Board of Supervisors, he had to go — in a bureaucracy those things take time, unfortunately we cannot just spring to action.

The tours cover as the record shows virtually the entire facility, there is no screening of any visitors.

It is — the record indicates that many of the places are just taken by ordinary citizens, people who have a curiosity about what is going on in the jail.

The tour does not see any inmates, no inmates are — I better be specific on that, you certainly might see them you do not talk to them, there is no communication between inmates and the members of the tour.

The tours at that time were 25 persons, they are now approximately 30 and there is only four guards so plainly, conversation between inmates and in visitors is impossible.

No cameras are permitted on the tours and no tape recorders are permitted on the tours.

Lewis F. Powell, Jr.:

What opportunity did members of the media have to become one of the 25 admitted on these tours?

Kelvin H. Booty, Jr.:

They had at the commencement of the tours Your Honor, better access than anyone else because the announcement of the tours was made through the media.

It was in fact a suggestion by some of the members of the board, the Supervisors that the first tour should be set aside entirely for the media and the discussion – that suggestion was rejected on the grounds that if they wanted to go, they knew about it before anyone else and so all they had to do was file —

Lewis F. Powell, Jr.:

Basically the tours were organized on a first come first serve basis.

Kelvin H. Booty, Jr.:

Exactly, they were and are.

Lewis F. Powell, Jr.:

Did one of the briefs or the records state opinion that they were overbooked some weeks in advance?

Kelvin H. Booty, Jr.:

They became, the first six months of the tours became booked very quickly, quite possibly before the end of July, the first tour was on July 14, 1975 and probably before I do not remember, my recollection Your Honor is that before the end of July the tours had been booked.

Lewis F. Powell, Jr.:

And so if there were some occurrence in the jail that might have been of public interest there would be no way for representing it to the media to get into the jail unless he had been signed up several weeks in advance?

Kelvin H. Booty, Jr.:

That is correct, he could not have gone on one of tours, that of course is not the only means of access Your Honor.

Had there been an occurrence in the jail indeed before the tours ever started, the media can and does have alternate means of finding out what is going on, by means of interviews, I have not completed the access that is now and was then available to the media.

Lewis F. Powell, Jr.:

You are still outlining access that was available.

Kelvin H. Booty, Jr.:

To the public.

This was all — this is what became available to the public; the media has then and now greater access than the public.

I beg your pardon Your Honor.

Potter Stewart:

It has an addition to these rights, the public additional rights.

Kelvin H. Booty, Jr.:

Yes Your Honor that is what I am saying.

I might have misspeak.

Potter Stewart:

In any event under the existing regime, the media has all these same rights that the public has of access.

Kelvin H. Booty, Jr.:

Yes exactly.

Potter Stewart:

Plus some additional ones that have been granted to it by the Sheriff’s office.

Kelvin H. Booty, Jr.:

That is right Your Honor.

William H. Rehnquist:

Mr. Booty you have been outlining, what I gather are general rule, general policies of the Sheriff’s office.

Are these designed to cover the situation supposing a riot had broken out in the jail or in some event a particular newsworthiness, would these regulations have necessarily governed press or public access under those circumstances?

Kelvin H. Booty, Jr.:

Yes, it would, there is nothing in the record and in the case Your Honor to indicate any alternative means to these and as I say I am not finished, but this media or pardon me this access package taken as a whole is the entire package.

So if there had been a riot or a fire or something like that, then the means of access for the media are through alternative means such as interviews or something of that nature with participants.

Not the capacity to go in with their cameras, at least on demand, there is one, I do want to get into one specific media access that the media alone has and that is special tours with the cameras and with tapes on a scheduled basis, that is critical, not on demand, but on a scheduled basis there is no fix schedule, whatever schedule the District Court had in mind and as the keys turned out there was no schedule propagated, but this Sheriff is still willing to do that, that is part of it, of course finally the release bus to contact inmates.

Alright that completes Your Honors the access that exists.

The complaint of KQED with respect to this, is that there is no random interviews on the tours, that no inmates are on view for their cameras in cells or barracks or eating for televising and that there is no access on demand for their equipment.

As I have just indicated there is access with their equipment on a schedule basis, but not on demand.

The District Court did not make any finding of any intention to conceal conditions in the jail, but nevertheless, the District Court made its injunction which requires the Sheriff to allow what it called full and accurate news coverage and specifically required the Sheriff to permit random interviews on the tours and to permit the use of cameras and tapes and plainly not on the schedule tour, but on a demand tour.

The only exception stated in the District Court’s memorandum and injunction was that when tensions in fact existed the Sheriff could put a stop to it, stop to the access.

In fact the District Court virtually invited litigation on the point because it says, if anybody thinks there really is no tension they can come in and we will have a hearing on that.

So what the District Court did then is it balanced the asserted media needs against the Sheriff’s public access program.

There was no balancing by the District Court of the public’s rights in anyway.

The District Court did not address the public rights in anyway.

William H. Rehnquist:

When you say the public right, are you talking about some term that has meaning in Constitutional law?

Kelvin H. Booty, Jr.:

Yes, I think I am.

I think the public does have some rights of access.

William H. Rehnquist:

Is the Sheriff of Alameda county an elected official?

Kelvin H. Booty, Jr.:

Yes Your Honor, he is.

William H. Rehnquist:

And I presume if the public in Alameda county thought they were not getting enough access they could vote against him in the next election?

Kelvin H. Booty, Jr.:

No question about it.

William H. Rehnquist:

And what other right of access does the public have?

I mean under, say under the decided cases of this Court.

Kelvin H. Booty, Jr.:

Well.

Potter Stewart:

Under the Constitution of the United States.

William H. Rehnquist:

As interpreted by this Court.

Kelvin H. Booty, Jr.:

Well it is not entirely clear.

In the Pell case what the Court did as I as I read it any case is, the Court found that there was no intention to conceal any conditions.

The Court found that there was public access and that was enough, those two factors, there was plainly no — nothing being swept under the rug, nothing being hidden.

At least the Court determined that the public access was there adequate, that was the statement of the Court.

Now I appreciate and the reason I hesitate Mr. Justice Rehnquist, I appreciate that the public access in that case was not strictly speaking an issue just as it was not placed an issue here.

William H. Rehnquist:

Was not Pell really a decision that said whatever the public access is the media access need to be no greater.

Kelvin H. Booty, Jr.:

Indeed, that is exactly what the Court said.

But I do not read the decision they are saying that means necessarily that the public access is zero.

That is not resolved in any decision that this Court that I am aware of.

It was not placed an issue in that case.

That is my point.

John Paul Stevens:

But more specifically Mr. Booty you do not seriously contend that the whole problem could be solved by having zero access to public and press both?

Kelvin H. Booty, Jr.:

Certainly not.

That is not.

Potter Stewart:

Why do not you?

Kelvin H. Booty, Jr.:

Well that is not —

Potter Stewart:

It is a perfectly logical position to take.

Is it whether it is a correct position or not, logical or not.

Kelvin H. Booty, Jr.:

Yes it is a logical position Your Honors, but it is not our position that there is no — I am not convinced and considering the body that I am speaking to, I am convinced, that is what the Court held in Pell.

Potter Stewart:

What the Court held in Pell was as I understood it and writing it was that the press had no right of access superior to that of the general public.

Kelvin H. Booty, Jr.:

Absolutely.

No question about it.

Potter Stewart:

It did not hold, it did not deal with whether or not the general public had any right whatsoever.

That is counted under the constitution, the first and Fourteenth Amendment or any other provisions of that document.

Kelvin H. Booty, Jr.:

Well, I — that is exactly my position too Your Honor.

It was not dealt with.

Court did not have to deal with it and I have been asked, did it and I do not think that it did.

John Paul Stevens:

And you would not urge the court to take that extreme position, would you?

Kelvin H. Booty, Jr.:

No, I am not urging that.

That is not our position, the first place Your Honor, that is not — with respect, that is not before you, it was not tried in the District Court.

We urged that, that was the issue.

Our position of the District Court was the extend of the public access should be measured and that of course that automatically if you will, sets the media’s access rights.

But, that was not what was tried and that is not what the District Court did.

KQED’s position in the District Court which the District Court adopted was that, we have to have special things for the media, we tried it as a media access case, not a public access case.

I want to emphasize one other thing.

Access, if you read the District Court’s opinion it is mainly something about tours.

Access is more than tours, access is visitation, access is mails, this court has said some strong things about mail rights in prisons for instance in Procunier versus Martinez, the Court said, you cannot do censoring without a lot of due process, protections.

There may well be a right to have visits.

Particularly if as we are per county jail half of our inmates are pretrial detainees, they have special rights which might not appertain to an entirely convict population.

John Paul Stevens:

Mr. Booty can I ask one other question about the access at the time the lawsuit started.

One of the points was visiting.

People could visit prisoners or inmates that they requested.

Kelvin H. Booty, Jr.:

Yes Your Honor.

John Paul Stevens:

Does the record tell us the scope of the visit that could be had, in others words could the visitor; what could the visitor see?

Does the record tell that?

Kelvin H. Booty, Jr.:

No, the record does not tell you.

As I recall it, the visiting is in — well, I do not want to go outside the record.

It does not tell you.

It is not the same thing as a tour.

John Paul Stevens:

Does the record, I do not — of course I do not question your statement, but does the record tell us that there was visiting before the case–

Kelvin H. Booty, Jr.:

Oh yes, it does.

John Paul Stevens:

It does tell us that.

Kelvin H. Booty, Jr.:

Yes, it does tell you that your Honor.

In the — for instance, in Appendix page 41 and I believe, this is dealing with the minimum security inmates, who are visiting only on Sundays, there is greater visiting for the pretrial detainees.

We were under some orders from the District Court.

Different Judge, Judge (Inaudible) on visiting in so we have greater visiting for pretrial detainees.

John Paul Stevens:

Well, that page does tell us something about the nature of the visiting rights.

That tells us they will be in the barracks or in the auditorium rather than they wait in the barracks.

John Paul Stevens:

It implies that they would not have unrestricted access to the entire facility.

Kelvin H. Booty, Jr.:

Yes, that is correct.

John Paul Stevens:

Yeah, so, it does —

Kelvin H. Booty, Jr.:

I perhaps misunderstood the Court’s question.

It isn’t expanded on any more than this.

John Paul Stevens:

It does indicate there is no physical contact between the visitor and the inmate.

Does that mean they talk through a glass window.

Kelvin H. Booty, Jr.:

In the maximum security facility that is the case at present and then, it is not indicated here, it is my understanding there is not glass and telephones and this is across the table.

John Paul Stevens:

I see.

Kelvin H. Booty, Jr.:

So, it seems to me we come now to what I consider real legal issue, which is in a situation where the adequacy of the public rights, the access are unchallenged.

There is no determination of any intention to conceal, must the Sheriff give access rights greater to the media than he gives to the public and we have in our briefs cited the court’s cases back approximately 20 years.

All with the same effect which is that the press has no greater rights to than does the public to gather information, we are talking about access rights.

The two latest cases from this court which in our view are controlling are Pell case and the Saxbe to which we have referred and the issue in each case there was, did interviews by the media with specifically named inmates have to be granted, when it was not available to the general public and the Court held that in each case they did not.

Court applied the general rule of which we have stated, which is the press has no greater rights.

Since the public did not have the right to interview specifically named inmates; press need not be given it either.

Now it is true, then in both case the media had greater access than did the public.

They had the right to interview those encounter randomly on of course the tours for instance and from this KQED argues that because this greater media access in fact existed in that case the Court held that it was constitutionally compelled, but when that greater media access was not an issue and it was not it was merely an existing situation.

There was not any controversy about it, it was not placed an issue by any litigant.

There was nothing to decide, nothing to resolve and hence in our view there is no such holding as contended by KQED.

Byron R. White:

Did you say earlier in your argument that the Sheriff was now willing to or has been willing to give the press greater access than the public?

Kelvin H. Booty, Jr.:

He does and has in two respects Your Honor.

He gives the press tours with their cameras and with their tape recorders on a schedule —

Byron R. White:

You say that is critical to your case.

Was that the word that you used?

Kelvin H. Booty, Jr.:

No Your Honor.

I did not say — I might have, but I —

Byron R. White:

You do not mean it?

Kelvin H. Booty, Jr.:

I do not mean that if I said that.

It is not critical–

Byron R. White:

But wholly inconsistent with your present argument.

Byron R. White:

If it were critical.

Kelvin H. Booty, Jr.:

It is uncritical.

It is a fact that he — just as in Pell and Saxbe it was —

Byron R. White:

But as far — according to your present argument you could eliminate that special privilege for the press.

Kelvin H. Booty, Jr.:

Yes Your Honor.

That is correct.

Byron R. White:

And could you tell me where in your briefs you described this special press privilege?

Kelvin H. Booty, Jr.:

Yes Your Honor.

Byron R. White:

Is it in your opening brief?

Kelvin H. Booty, Jr.:

I believe so.

Byron R. White:

And if some member and my other question is if some members of the public; non-press members, said we would like to go with the press tour with our cameras.

What would you say?

Kelvin H. Booty, Jr.:

That would have been denied.

Byron R. White:

Because the public does not have as much right as the press?

Kelvin H. Booty, Jr.:

Yes, that is right.

No, well I do not know whether that is right.

That was the Sheriff’s policy, the Sheriff’s policy is that this is something specially for the media.

Byron R. White:

Well what if the press sued that — what if the private person, the one that goes with the press tour with his cameras and he sued.

What would you say, what would you say that he has no — would you say you are not required to give him the equal access with the press.

In short that the press has a greater privilege.

Is that what you are saying?

My worry is that where do you describe that or do you?

Kelvin H. Booty, Jr.:

I will find it.

I will resume the rest of my time for rebuttal.

Thank You.

Kelvin H. Booty, Jr.:

Thank You.

Warren E. Burger:

Mr. Turner.

William Bennett Turner:

Mr. Chief Justice and may it please the Court.

Warren E. Burger:

What do you have to say about rights of an individual who walks in on the day when the press has a scheduled tour and says I have a camera, I am an amateur photographer and I want to go along.

Do you think the Sheriff can exclude that private citizen?

William Bennett Turner:

First of I would like to correct the state of the evidence.

The Sheriff has never, since he has been in office, held a special tour for the press; there is nothing in the record to support it.

All he said when it became clear at the evidentiary hearing in this case is that he would be willing if the Court was going to grant preliminary injunctive relief to live with a special tour for the press in which they could bring their cameras and do their business in that way.

He has never implemented that offer.

And in context that offer was only to be carried out if the District Court was going to order him to do anything more than he was otherwise willing to do.

Warren E. Burger:

Do you think it is a matter of prison or jail administration, the Director or Sheriff could say, it is more convenient to keep these two categories separate, that is we will have general public visitation on the first Monday in every months and we will have media representatives on the second Monday of every month.

William Bennett Turner:

I think it is permissible.

Warren E. Burger:

As an administrative matter.

William Bennett Turner:

For an administrator of the jail or a prison to —

Warren E. Burger:

Any constitutional question involved in that kind of a decision or is that just routine administration of the institution?

William Bennett Turner:

A constitutional question arises when as in this case the Sheriff limits access by reporters either to zero as before this case was filed or to these antiseptic guided tours that he initiated right after we filed suit.

There is a constitutional issue.

Warren E. Burger:

Well if he gives the media precisely and exactly the same access as the public, do you think there is any constitutional problem involved?

William Bennett Turner:

I do, if that access is zero or if the access is not reasonably sufficient to prevent consummative conditions in the jail, then we would have a situation as they have in South Africa where the press is effectively precluded from reporting on jail and prison conditions.

Warren E. Burger:

What part of the Constitution do you draw on to say that there is a right to access to take pictures and do these things?

William Bennett Turner:

Well this is a First Amendment case.

I think it would trivialize the First Amendment to say that it requires specific things like a particular number of days a week or photographs or random interviews as opposed to full interviews with individuals and so on.

I do not think that is what the First Amendment does.

What the First Amendment does is prohibit a government official from unjustifiably interfering with the acquisition of information for the publication.

That is was this case is about.

William H. Rehnquist:

When you say unjustifiably interfering with acquisition of information for publication then it is a justiciable question in every case whether for instance the Supreme Court of United States excludes the press from its conferences or whether the Federal Aviation Administration excludes the press from its executive sessions?

William Bennett Turner:

Well I do not about justiciable.

William H. Rehnquist:

Well it — you are tested any way.

It is something that subject to constitutional inquiry by a Court that can decide constitutional questions, whether the decision of any governmental official to exclude the press from any part of the public domain under his control is called “justifiable”?

William Bennett Turner:

Yes, that is our position.

Our position of course is not that the press is entitled to sit in on conferences of this Court, any Court, any administrative agency and so on.

William H. Rehnquist:

But only because that is a justifiable decision on the part.

William Bennett Turner:

Yes.

And the information has some claim to confidentiality.

William H. Rehnquist:

But in each case, you could go into the United States District Court of whatever district you want and under 1331 argue a constitutional question as to whether or not the decision of the particular agency was justifiable.

William Bennett Turner:

Theoretically yes, but in fact there are not any other agencies that we are aware of, that treats information the way the Sheriff does.

The evidence in this case shows that the jails and prisons and the area are completely open to the press and they may enter and go into the maximum security sections, talk with prisoners, interview prisoners, take pictures whatever they want to do.

Those are the institutions where one would assume public access is rather limited and justifiably so.

Warren E. Burger:

Let us suppose the President decides to have Cabinet meetings open to the media with television and all the other instance.

Does that mean that the Court’s have to open their conferences because someone else does it?

William Bennett Turner:

No of course not.

Warren E. Burger:

Well then what significance is it that some other prisons in this area have different practice?

William Bennett Turner:

Because it shows how unjustifiable the Sheriff’s practice is.

That there is no valid interest.

Warren E. Burger:

Well if President opens the Cabinet meetings to TV, then how could United States Court of Appeals or Court of Claims have a justifiable reason for excluding them?

William Bennett Turner:

Well I think, I do not know what the President’s reasons might be for opening Cabinet meetings.

But surely in the context of a Court, where there is deliberation going on where there has to be a freedom to take opposite points of view then we will ultimately be handed down a decision, that kind of discussion just has to by its very nature be confidential.

Warren E. Burger:

Well then suppose the United States Courts of Appeals all decide to open their conferences to television.

Does that mean all other Courts have got to do it?

They are engaged in the same kind of a decisional function?

William Bennett Turner:

I do not think that they would have to, no.

Warren E. Burger:

Then what someone else does is really not very relevant.

Is it?

William Bennett Turner:

Well it is only relevant to show how unjustifiable this Sheriff’s practice is.

It is not dispositive in the case of this Court or any other Court, where there might be radically different considerations.

I would like to answer Mr. Justice Steven’s opening question about the state of access when the suit was filed.

There was none.

Until the suit was filed, conditions in this jail were concealed from the public because the Sheriff completely excluded both press and the public from the facility.

Potter Stewart:

There was I presume access under the Sixth and the Fourteenth Amendment.

William Bennett Turner:

Well an Attorney could go out and interview his client in the visiting room.

Potter Stewart:

At any reasonable time?

William Bennett Turner:

Yes of course and of course there was mail by prisoners to people on the outside at the time we filed suit the Sheriff’s rule for the bad prisoners, from mentioning the name or action of any officer, that was changed immediately after we filed a suit.

But of course there was social mail and so on, there was visiting with family and friends, that serves the purpose of not cutting prisoners off from the outside world.

They can maintain some contact.

But it does not serve the purpose of informing the public what is going on in this jail and of the conduct of an elected Sheriff’s office.

Byron R. White:

Well at the time, at the time this suite was started could a member of the press interview a prisoner, during visiting hours if the prisoner was willing to be interviewed?

William Bennett Turner:

The practice as I understand it was that anybody could visit any prisoner.

Byron R. White:

Including the press?

And your answer is yes.

William Bennett Turner:

If you happen to know one.

If you happen to know of somebody you could out and ask for them.

And if they were willing to talk with you, you could talk with them in the visiting area.

Byron R. White:

Well how about recording the interview with a willing prisoner?

William Bennett Turner:

No that would not have been permitted.

Byron R. White:

Or a photograph?

A willing a photograph?

William Bennett Turner:

That would not have been permitted unless reporters obtained the four consents mentioned by Counsel, the prisoner himself; that is certainly reasonable, his lawyer; that is certainly reasonable and the Sheriff required the consent of the District Attorney; for reasons unknown to us and unexplained and the Court having jurisdiction of the case.

This is not a gag rule problem.

This was standard procedure that made it exceedingly difficult to have any interviews.

Byron R. White:

What was the rule?

What is the rule now?

William Bennett Turner:

Same rule.

Byron R. White:

On visitors on visiting.

William Bennett Turner:

Same rule, that has not changed.

Byron R. White:

And the Court did not order, a change?

William Bennett Turner:

No.

The only feasible way that the public at large will know what is going on in in this jail is if reporters are allowed in.

A handful of people can go on the tours, but reporters acting as agent for the public at large, the eyes and the ears of the public at large, can go in and without any disruption to jail routine because it is done routinely in all of the other jails and prisons in the area, can meet this public need without interfering with any purpose, valid purpose of the Sheriff.

Warren E. Burger:

What would you say if the old fashioned system that existed at least a century ago of having Boards of visitation reported semi-annually or quarterly to the local governing body, were created and you had six citizens designated by the Mayor or by the Court or by someone who made these visits regularly and reported publicly.

Would you say that would satisfy the publics right to —

William Bennett Turner:

No it would not Mr. Chief Justice, it would be helpful.

But such visiting board could only and where they do exist, do only go on a very occasional basis to the facility and do an inspection.

Warren E. Burger:

I did not put any limit on it and indeed at times beginning with the colonial days these boards of visitors, visited such institutions, just the way bank examiners do today, unannounced.

William Bennett Turner:

If they were charged with a gathering information about an event of public concern and were in a position to go out to the jail and investigate, find out what happen, report it to the public promptly that would serve the same purpose.

Now the Sheriff in answering why should not reporters be allowed to do their job, same job done in other jails and prisons in the area, points to the Courts decisions in Pell and Saxbe and his core position is that all that he needs to do is provide quality of access, not access, but equality is the way he reads those decisions.

Warren E. Burger:

How do you read them?

William Bennett Turner:

We think that the whole assumption of the Pell and Saxbe decisions is that there be reasonably sufficient access to prevent concealment of conditions.

If there is that then equality is fine.

We do not claim any superior rights for the press.

Potter Stewart:

Well you do claim I suppose you certainly could reasonably claim that even though the right of access of the communications media is no greater than that of general public that perhaps because of the technical needs of communications need media, if the equality needs to be provided in a different kind of way.

In other words let us say that there is a right there that under the existing rules and regulations that public can go through the certain rooms of the White House within certain hours everyday.

Well the press could not set up its television cameras then and there and interfere then they each should interfering with each other, but certainly there is an equivalent availability to the communications media of the same sort of public access to those rooms in the White House that are open to the public, but that might require a special arrangements for you to make to setup your television cameras or something else at an hour when the public in fact is not there.

William Bennett Turner:

Yes.

Potter Stewart:

Just in order to preserve and provide the very equality to which the media is entitled.

William Bennett Turner:

Exactly.

We have no quarrel with the Court’s holdings in Pell and Saxbe.

There was rather full access there, reporters could enter the institutions, go to the maximum security sections, talk with prisoners they are randomly encountered, take photographs, the only thing that could not do, the only purposes for which access was then denied was to single out individual prisoners and make media heroes out of them, have them interviewed, have them come to public attention and the evidence in that case was that, that indeed created security problems.

The Court appalled that narrow restriction on access, but there was certainly sufficient access to prevent concealment of conditions in that prison and we do not have any quarrel either with the broad no greater access statement of the Court in those cases, provided but it is understood that there is sufficient access to prevent concealment.

Potter Stewart:

Well how far does you argument go?

There are many areas would not you agree that to which the public does not in fact have access, let say to the Oval Office in the White House, no general right of access by the general public at any time during the 24 hours of each day with seven day a week and to that extent, there is no access period and to that extent the public does not know what goes on in there.

William Bennett Turner:

That is right.

Potter Stewart:

It knows only through press officers at the White House and yet does that mean that for some reason or another the fact that the public is not admitted at all that the press then must be?

William Bennett Turner:

No.

Potter Stewart:

Well, then what is your argument?

William Bennett Turner:

Well, we are not.

Potter Stewart:

Let us assume in this particular county jail the public was not admitted at all, except in terms of the — that is the general public members of the families were and lawyers were and doctors were.

Let the general public know by that very fact does the press then gain access, that seems to be your argument.

William Bennett Turner:

Yes it is.

Potter Stewart:

I do not understand that.

William Bennett Turner:

Well that was the situation before this case was filed, not only was the public —

Potter Stewart:

I am talking here not about policy or prudential considerations or wisdom or lack of it, we are taking about what is required by the First and Fourteenth Amendments, else this case should not be here.

William Bennett Turner:

That is right.

Potter Stewart:

And why then does the mere fact that the public does not have access in thereby confer a right upon the press to access.

That is a brand new doctrine that I have never heard of.

William Bennett Turner:

If both press and public were wholly excluded as they were before this case was filed.

Potter Stewart:

And as they are from many areas, of public life, of a governmental life, they are excluded from the war room over in the Pentagon and I assume.

William Bennett Turner:

Indeed and should be.

Potter Stewart:

Various parts of the CIA as it has been pointed out, various private meetings of all sort of commissions in Courts and everything else.

William Bennett Turner:

The difference between those kinds of closed Institutions and this one are two.

First the information which is being discussed in the CIA and the various government agencies which you have mentioned is information that properly should not be made public.

Well here, what is going on in this jail is information that has no claim to confidentiality.

William H. Rehnquist:

How do you know what should be properly made public and what has no claim to confidentiality under the First and Fourteenth Amendments?

William Bennett Turner:

Well there is no claim at all by the Sheriff that anything that happens in this jail should be held secret from the public.

William H. Rehnquist:

Well, but you have to make out your claim under the First and Fourteenth Amendments to the Constitution.

So when you say that something has no claim to confidentiality that must be a part of the First and Fourteenth Amendments, otherwise you cannot prevail.

William Bennett Turner:

Well, what I am saying is that we do not seek access to information that has any claim to confidentiality.

Potter Stewart:

Well there maybe other reasons that the public is not given access and outside from the confidentiality.

The reasons of security or discipline or the very fact that a jail is a jail.

William Bennett Turner:

Indeed and to the extent there is a governmental interest.

Potter Stewart:

A troop could, a commander of a military station could certainly keep members of the public out of observing certain troop activities, I assume.

William Bennett Turner:

Yes, of course when there is a governmental interest.

(Inaudible) confidentiality, just for some discipline and we are paying the troops.

William Bennett Turner:

Yes indeed.

Oh of course.

We conceive that, we believe that the proper test is the one that this Court used in Martinez before that in O’Brien where there is a governmental interest, whether the interest is confidentiality of the information over security problems or some other important governmental interest.

Of course access could be denied.

Potter Stewart:

It maybe part of the punitive policy of a particular Governmental Agency might be that in this jail you are not going to have members of the general public around.

We are going to — this is the maximum security institution and one of the conditions in this jail is that you are not going to be able to associate even peripherally with the members of the general public.

Why would not that be a perfectly legitimate governmental interests.

William Bennett Turner:

Well, it maybe but this Sheriff has never advanced that consideration.

He certainly does not have.

Potter Stewart:

Well, he does not have to, it is you who are attacking what he has done.

William Bennett Turner:

That is right.

Potter Stewart:

It is you who are saying what he has done is unconstitutional, violative of the United States Constitution.

He does not have to justify that have to invalidate it.

William Bennett Turner:

The District Court invalidated it because it found that the interest advanced by the Sheriff were though important, the means of exclusion that he used were not necessary to serve any of his interests.

Of course if access has to be denied during an emergency, no question about it.

That is built in to the District Court’s order.

All that District Court said is reasonable times, we see that as meaning on reasonable notice and the Sheriff may completely refuse access at any time when he thinks in his discretion according to the District Court’s order tensions in the jail would authorize him to close it down.

John Paul Stevens:

Mr. Turner, in answer to Mr. Justice Stewart’s question about the difference between what you claim your rights are here and the interest in finding out what happens in governmental conferences, whether there is secrecy and like you said there are two differences one is there is an absence of interest in confidentiality here and there is an interest in confidentiality in these other cases, but you never get your second point.

William Bennett Turner:

The second one is that this is an institution whose purpose is the involuntary confinement of people, with an opportunity for over reaching of liberties of the people who are involuntarily confined and very little opportunity for that to come to public knowledge unless reporters are permitted in.

William H. Rehnquist:

Do not each of those people who have the right of access to a lawyer?

William Bennett Turner:

Well, some would be represented by the public defender if they are pretrial detainees.

The other half of the prisoners who are convicted and serving misdemeanor sentences or short felony terms do not as I understand that have the right to Counsel.

William H. Rehnquist:

But has not this Court held they have right of access to Court at any day (ph)?

William Bennett Turner:

Oh of course and they could mail off to Court or writ of Habeas Corpus.

But that is not a way of bringing to public attention the Sheriff’s stewardship of this facility.

Potter Stewart:

Oh it seems, why is it not?

William Bennett Turner:

Well, it might if the writ were heard.

Potter Stewart:

Might it not be a very appropriate way of doing precisely that?

William Bennett Turner:

On the evidence, but that is just not what happens when prisoners file these writs, they do not hold the plenary hearing and inquire into conditions.

Probably 99% of the writs are denied similarly with no hearing at all.

Potter Stewart:

And they are filed in the Court and their matters is a public record available to the press, are they not?

William Bennett Turner:

Yes, they would be.

Warren E. Burger:

Is there anything to prevent every prisoner in the institution whether a pretrial detainee or under a conviction from writing a long long letter to his wife or his mother or his lawyer and having that published in the letters to the editor?

William Bennett Turner:

Well, the Sheriff does not prevent it.

What prevents it is the responsibility of the journalism.

They are not going to print unsubstantiated information received from a prisoner whether by letter or otherwise without an opportunity to verify the allegations made by the prisoner.

That is what is missing here, cannot go in when the prisoners says there has been a terrible fire in the next cell and somebody has been badly injured, nobody can get in to find that out.

William H. Rehnquist:

Cannot you not go into interview him on a particular day?

William Bennett Turner:

Well, you can visit a sentence prisoner during the three hour visiting period on Sundays.

William H. Rehnquist:

Could not you verify or corroborate his story or further develop it in such an interview?

William Bennett Turner:

Yes, but you could not see the scene.

You have no idea what the conditions look like.

Should the press take the prisoner’s word for what it looks like and what happened without checking it out.

William Bennett Turner:

I think not and certainly my client thinks not.

William H. Rehnquist:

Or should the press take the President’s press secretary’s word for what the President’s view was are without going to the Oval Office and checking him out.

William Bennett Turner:

Well that is the way they do business over there.

William H. Rehnquist:

Well this is the way they do business in Alameda County.

Potter Stewart:

We are dealing here with a constitutional issue.

William Bennett Turner:

The President of the United States cannot be required to meet the press by any Constitution.

Warren E. Burger:

What about United States Senator?

William Bennett Turner:

I beg your pardon.

Warren E. Burger:

How about the United States Senator, there are normally a hundred of them?

William Bennett Turner:

No, I do not think any Court could order a Senator to sit down and meet with the press.

Warren E. Burger:

435 members of the House.

William Bennett Turner:

We are not trying to use the First Amendment as a freedom of Information Act.

We are not saying the Sheriff has to come out and meet the press or open his files or tell us when anything happened.

He just cannot shut the door to us on the ground that all that is required is equality, even if that equality is zero.

Lewis F. Powell, Jr.:

Mr Turner before you proceed, I am now confused as to the facts with respect to personal interviews by a representative of the media with a preselected inmate.

I understood you to say earlier, perhaps I am narrow to say that there were four preconditions to such an interview including the Court approval?

William Bennett Turner:

That is correct.

It is a mysterious system Mr. Justice Powell.

The Sheriff’s position is that he will allow visiting by practically anyone.

So a reporter, if a reporter happens to know somebody at the jail, KQED reporters do not, could go out there and ask for that person during regular visiting hours and have a visit without any recording equipment or photographs anything of that nature.

In order to have what the Sheriff calls an interview then the four formal consents are required.

William H. Rehnquist:

When you say interview, you mean the television equipment and the tape recorders.

You can simply go and interview a prisoner during visiting hours without the four requirements?

William Bennett Turner:

If you know somebody to ask for and if that person is willing to talk.

Potter Stewart:

Nice place you would go with a notebook?

William Bennett Turner:

Yes.

Byron R. White:

Well I thought the, it is not the only issue here, the propriety of the injunction that was issued ordering a special tours for the press with cameras and recording equipment.

William Bennett Turner:

We do not tours, the preliminary —

Byron R. White:

That is what do you think the issue is here, just tell me?.

William Bennett Turner:

The propriety of the District Court’s preliminary injunction which grants during the pendency of this litigation, reasonable access —

Byron R. White:

And the issue in the Court of Appeals as I understand it, according to the opinions was whether or not granting the press, access to the prison different from the public that was proper or was necessary and that is the question that was raised in the petition for certiorari.

William Bennett Turner:

That is the way the Sheriff closes the issue.

Byron R. White:

And do you defend the opinion of the Court of Appeals?

William Bennett Turner:

Yes we do.

Byron R. White:

And that is the sole issue, is it not?

William Bennett Turner:

Yes it is.

Byron R. White:

Not whether, not generally whether all, whether the Sheriff has a satisfactory access program?

William Bennett Turner:

Well, but to the extent —

Byron R. White:

The only issue is whether this injunction is giving a special privilege to the press is constitutionally required?

William Bennett Turner:

Well, we do not want a special privilege, what we want is access sufficient to prevent concealment of the conditions.

Byron R. White:

Oh! I know but that is what you have got and if you say you are defending the Court of Appeals opinion you must defend that proposition —

William Bennett Turner:

Yes —

Byron R. White:

Because they said, they have expressly held that a special privilege to the press what was quite proper.

William Bennett Turner:

Yes we are also defending the District Court’s order which provides for reasonable access and authorizes the Sheriff to figure out just how that access will be organized —

Byron R. White:

That maybe so, but in this case the only issue is the special privilege to the press, that is the only question that was in the petition for certiorari?

William Bennett Turner:

That is the way the Sheriff poses the issue.

Byron R. White:

Well that is the one we granted.

William Bennett Turner:

Whether the Constitution —

Byron R. White:

Then why should we listen to any other question?

John Paul Stevens:

Mr. Turner do you — is that a correct statement of the question, the question presented is whether the District Court erred in granting a preliminary injunction, the question does not ask about the form of the preliminary injunction, does it?

But whether or not any injunction should have been granted?

Well no granted–

William Bennett Turner:

Yes but this injunction.

A greater access in county jail. —

William Bennett Turner:

Does it in terms of access for reporters.

John Paul Stevens:

But does the other side — the relief requested by the other side is a vacation of the entire injunction, not a change in its terms —

William Bennett Turner:

Exactly, they want a reversal which will be a message to Jailers throughout this land that access is never required by the Constitution that is a position we oppose.

Byron R. White:

Well I still ask you what do you think the question presented by the petition for certiorari is and that is before the Court and I would not doubt that the Sheriff would like to get the press out of his hair, but the issue here is —

William Bennett Turner:

Is whether he can do t?

Byron R. White:

Yes and the Court of Appeals said the remedy granted by the District Court giving special access to the press.

William Bennett Turner:

Was not an abusive discretion.

Byron R. White:

It said that it was quite proper and apparently thought it was constitutionally required.

Otherwise I do not know how the District Judge had any business ordering the press, ordering the Sheriff to issue special access to the press.

William Bennett Turner:

Well what was constitutionally —

Byron R. White:

He must have thought it was constitutionally required in the First Amendment.

William Bennett Turner:

Well what was constitutionally impermissible was the Sheriff’s exclusion.

Byron R. White:

You can put it that way if you want, but I gather then that you think the Constitution required the injunction that was issued by the District Court?

William Bennett Turner:

It requires some access and the District Court —

Byron R. White:

Some access, special access that is what it did.

William Bennett Turner:

Different access for the press than for the public at large, no doubt about that.

Yes, well that is the issue here, is it not?

William Bennett Turner:

But how that access is implemented was expressly left to the Sheriff to determine, in the first instant under the District Court’s order.

We hope that upon remand of the District Court to work out all the details so that these conditions will never again escape public scrutiny.

Potter Stewart:

Sheriff Houchins, we have been told is an elected official. Do you know for how longer term?

William Bennett Turner:

I am not sure, I think it is a four year term, but I do not know Your Honor.

Potter Stewart:

You do not if he is how many terms he has served if more than one?

William Bennett Turner:

He came into office on January the 1st, 1975.

Potter Stewart:

So he is in his first term?

William Bennett Turner:

Yes.

John Paul Stevens:

Mr. Turner before you sit down the record includes the visiting rules which were in affect in June of 75, it shows they were revised in June of 75.

Does the record contain the rules that were in affect before the June 75 revision, as I understand your controversy began in March and through May?

William Bennett Turner:

Yes, attached to my affidavit which is my affidavit is in the Appendix attached to that and in the record of the case, but not in the Appendix are the rules that prevail before a suit was brought.

John Paul Stevens:

I see, they are in the record but not the Appendix.

William Bennett Turner:

That is right.

Warren E. Burger:

Mr. Booty do you have anything further?

Kelvin H. Booty, Jr.:

Mr. Chief Justice, may it please the Court, a couple of points only.

The Court has asked some questions about visiting.

It is true that if you happen to know any inmate, you may visit him.

Any prisoner could write to any member of the press or could telephone him and ask him to come over on a Sunday or if he is a pretrial detainee on Tuesday, Wednesday or Thursday, for that matter.

We are talking about consents, the requirement of consents, why does the Sheriff require consents from all Attorneys and the Courts.

Kelvin H. Booty, Jr.:

It seems that the likelihood of harm from an interview with a pretrial detainee is to the detainee himself and it is the Sheriff’s view that he should, he would rather stay out of that and have the parties and the Attorneys and the Courts who are responsible, decide whether an interview with filming and with recorders is to be permitted or not.

I do want to point out to the Court that the access where the public in our case is greater than the public access was in Pell, for instance, in Pell the mail access was subject to censoring with appropriate due process protections.

In our case the mail is totally uncensored.

In Pell the visits were limited to certain groups of persons, in our case the visits are not limited.

In Pell the public access tour did not cover the entire facility, it did not cover the maximum security area for instance, there was a one year wait, you saw no inmates and took no cameras.

In our case you do see all of the facility.

Except the Greystone.

Kelvin H. Booty, Jr.:

No that is except a little Greystone Your Honor.

Well except, do not say all the facility.

Kelvin H. Booty, Jr.:

Except for little Greystone, little Greystone Your Honor is a barracks facility, other barracks facilities are seen there, identical.

Right, so there is an exception?

Kelvin H. Booty, Jr.:

There is that exception, incidentally Mr. Justice White you asked for the reference, it is in our brief at page 11.

This is the scheduled tours for the media and in there is the reference to the record where that is displayed.

Well you and your opponent seem to differ substantially on the quality and the kind of access available when the suit began.

Now there is some findings as to what it actually was in, by the District Court?

Kelvin H. Booty, Jr.:

The District Court’s memorandum has the only findings and that is directed almost entirely to a critic of the public tours from the point of view of a reporter.

So that there are no findings?

Kelvin H. Booty, Jr.:

There are no findings.

So that you two are just fighting it out on the evidence in the record?

Kelvin H. Booty, Jr.:

That is correct, in that respect I am afraid that is true Your Honor.

And now where is that description of the special press tour that you say the —

Kelvin H. Booty, Jr.:

In the record Your Honor, it is page 11 of our opening brief.

Page 11 okay thank you.

Warren E. Burger:

Is this Court or the District Court down in this area, generally enter injunctions without very specific findings or fact?

Kelvin H. Booty, Jr.:

I — this District Court Your Honor?

I have had no previous experience with the late Chief Judge and so I really cannot speak to that.

I think that is substantially completes my —

Mr. Booty may I ask one other question?

Kelvin H. Booty, Jr.:

Certainly Your Honor.

Precisely what question we are being asked to decide —

Kelvin H. Booty, Jr.:

Yes Your Honor.

John Paul Stevens:

Is it your view that there was no basis for any injunctive relief at all, that is what you are asking that the injunction be entirely set aside or is your claim one that excessive relief was granted?

Kelvin H. Booty, Jr.:

It is our claim that under the District Court’s approach no injunction was proper.

If someone had tried to establish and it should be noted that there were private persons as parties in this case who did not testify the NAACP plaintiffs.

If those as representatives of the public had challenged our public access program, then it is possible that some, that the District Court could have determined properly or improperly, I do not know, but could have determined that the public access program was adequate or not.

That was never done and so I —

John Paul Stevens:

Well if the Court had been persuaded that at the time the law suit was brought there was virtually — there was insufficient access, not quite zero, but close enough to zero so that there was a denial of First Amendment rights both to the public and the press and if in arguing for preliminarily injunction the press had said at least give us this much, and he had only granted relief to the press, would that have been constitutional error?

Kelvin H. Booty, Jr.:

Yes it would in my opinion.

The error is that as I understand the holding of this Court in Pell and Saxbe, you cannot, you need not give the press greater access than the public —

John Paul Stevens:

Could he have cured that constitutional error by saying that both the public and the press shall be entitled to the same relief and then had exactly the same relief —

Kelvin H. Booty, Jr.:

It would have cured that odd error, it would not have cured the other error of whether or not any access whatever is required.

That is a different issue which was of course never reached Your Honor.

But that is the first issue that has to be decided, you would agree with that?

Kelvin H. Booty, Jr.:

Yes I do.

Thank you Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.