RESPONDENT: KQED Inc.
LOCATION: Alameda County Sheriff's Office
DOCKET NO.: 76-1310
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 438 US 1 (1978)
ARGUED: Nov 29, 1977
DECIDED: Jun 26, 1978
Kelvin H. Booty, Jr. - Argued the cause for the petitioner
William Bennett Turner - Argued the cause for the respondent
Facts of the case
KQED Inc., owner of a number of licensed television and radio broadcasting stations, requested permission to inspect and take pictures of the Alameda County Jail at Santa Rita. KQED sought to investigate a recent suicide that had occurred at the facility. Houchins, the Sheriff of Alameda County, denied access to the media.
Did the First Amendment guarantee news media a right of access to jails over and above that of other persons?
Media for Houchins v. KQED Inc.Audio Transcription for Oral Argument - November 29, 1977 in Houchins v. KQED Inc.
Audio Transcription for Opinion Announcement - June 26, 1978 in Houchins v. KQED Inc.
Warren E. Burger:
I have also for announcements, the disposition of 76-1310, Houchins against KQED Inc..
Since my brother Stewart who concurs in the judgment wishes to announce and explain his views, and my brother Stevens joined by Mr. Justice Powell who dissents, both of them dissenting wishes to view the same, it would unfair on my part to ask them to explain my opinion for plurality of the court.
I will therefore go beyond my usual practice of announcing, only the result.
On its face, this case involves a claim of TV and newspaper reporters to a special right of access to enter prison facilities, to take pictures, still pictures and motion pictures for publication and for broadcasting.
Naturally, their chief interest is not limited to the bars and the cells, but the people, people of course make news.
I should say at the outset too, that we have a short course in this case, since Mr. Justice Marshall and Mr. Justice Blackmun took no part in the consideration or decision.
In the opinion, which I have filed for plurality, I trying to make it clear that except for protecting the privacy of prisoners as much as is reasonably possible.
It is a good thing, a very good thing for the public to understand more than public does about prisons in jails and the conditions in them.
Yet there are some limits.
The inmates of these institutions lose many of their civil rights and their right of privacy is necessarily limited, but they retain some rights.
This court has spoken often on the right of access of the media to such institutions.
Back in 1964, Chief Justice Warren writing for the court said this, “There are few restrictions on action which could not be clothed by ingenious arguments in the garb of decreased data flow”.
For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion on the way the country is being run, but that does not make entry into the White House a First Amendment right.
The right to speak and publish does not carry with it the unrestrained right to gather information."
More recently, in the court's opinion in Branzburg against Hayes, the court stated, the First Amendment does not guarantee the press, a constitutional right of special access to information not available to the public generally.
And at a later point in the opinion, the court stated, Newsmen and here we should watch our language more carefully, and we should say newspersons have no constitutional right of access to the scenes of a crime or a disaster when the general public is excluded.
In Pell against Procunier and Saxbe against Washington Post, the court declared explicitly and without reservation essentially that the media have no constitutional right of access to prisons or their inmates beyond that afforded for the general public.
But I would like to come back to emphasize what to me is the real issue, the basic issue in this case, and that it is neither the claim of the media to enter and take pictures for publication and broadcast or interviewing the inmates, nor is it the question of bringing prison conditions out in to the open.
Anyone can visit prisons and write or speak about what they see, anyone can interview former inmates, their families and their lawyers.
The basic and the real question in this case is who shall decide what the access is to be?
Who shall decide what rights the media should have?
And just as in the recent snail darter case, where I thought and there was majority of the court agreed that the real issue was not what was sensible and what was sound and what was good and what was desirable, but whether Congress or judges should make the decision?
So here, although I strongly favor maximum public information about prisons, I agree with the prior decisions of this court which hold clearly and beyond any doubt that the right of access is not a constitutional matter, but one policy for the legislative and the executive branches.
Congress, some years ago passed the Freedom of Information Act opening a great deal of governmental information to the public.
It can do much the same for prisons and state legislatures can do likewise.
I am intended to my brother Stewart for an article which he published in a law journal sometime ago on this subject.
There he said that “the First Amendment is neither a Freedom of Information Act, nor an Official Secrets Act.”
Even I don't want to say that the guarantees or freedom of the press and these were his words, end of speech “established the context for information, not its resolution, for the rest,” he continued, “We must rely as so often in our system on the tug and pull of the political forces in American society.
Grand juries, prosecutors, legislative committees can enter prisons and jails without limit to investigate conditions and if they do so and fail to report those conditions to the public, I suggest that the power of the media to compel disclosure in those circumstances is virtually -- would be virtually irresistible.”
In this case they seek to have the court, this court, to write a Freedom of Information Act, something that Justice Stewart wisely said should be left to repeat his words, to the tug and pull of the political forces, that is say to the legislative process.