CONSTITUTIONAL LAW-FIFTH CIRCUIT COURT OF APPEALS

Transcription

1 1031 CONSTITUTIONAL LAW-FIFTH CIRCUIT COURT OF APPEALS DENIES TEXAS REPORTER'S FIRST AMENDMENT CLAIM OF RIGHT TO FILM PRISON EXECUTION-Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977). INTRODUCTION The first amendment to the United States Constitution declares that "Congress shall make no law... abridging the freedom of speech, or of the press... "' In Garrett v. Estelle, 2 the Fifth Circuit Court of Appeals rejected the contention of a Dallas, Texas, television reporter that the press had the right under the first amendment to film an execution in the Texas State Prison. 3 The court held that the Constitution does not require that the government accord the press special access to information not shared by members of the public generally. 4 Accordingly, since the public is not allowed to attend executions in Texas, 5 the Fifth Circuit Court of Appeals concluded that "the first amendment does not accompany the press where the public may not go." 6 The three-judge panel also rejected the reporter's fourteenth amendment claim that the state of Texas was discriminating against television reporters by denying Garrett the 1. U.S. CONST. amend. I. 2. Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977). 3. Id. at The district court in Garrett noted that in Furman v. Georgia, 408 U.S. 238, 370 (1972), the United States Supreme Court found the former Texas death penalty statute to be unconstitutional. 424 F. Supp. 468, 470 (N.D. Tex. 1977). The Court in Furman concluded that the former death penalty violated the eighth amendment in that it constituted cruel and unusual punishment. "In striking down capital punishment, this Court does not malign our system of government... We achieve 'a major milestone in the long road up from barbarism' and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment." Id. at F.2d at Id. at n.2. The court referred to the Texas Code of Criminal Procedure, article 43.20, which provides: The following persons may be present at the execution: the executioner, and such persons as may be necessary to assist him in conducting the execution; the Board of Directors of the Department of Corrections, two physicians, including the prison physician, the spiritual advisor of the condemned, the chaplains of the Department of Corrections, the county judge and sheriff of the county in which the Department of Corrections is situated, and any of the relatives or friends of the condemned person that he may request, not exceeding five in number, shall be admitted. No convict shall be permitted by the prison authorities to witness the execution. Tzx. CODE CRIM. PROC. ANN. art (1965) F.2d at See text at notes infra.

2 1032 CREIGHTON LA W RE VIEW [Vol. 11 right to film the execution. 7 Writing for the court, Judge Ainsworth stated that "[t]he Texas media regulation... also denies the print reporter use of his camera, and the radio reporter use of his tape recorder." 8 Garrett is a case of first impression due to its unique factual setting, in that the right of the press to film an execution for television viewing 9 has never been challenged. 10 Yet, the Garrett court's denial of such a right has been the source of enormous controversy." Press groups 12 have questioned the decision in light of the great public interest in the ongoing debate of 7. Garrett argued that by preventing him from filming executions the state was denying him equal protection under the fourteenth amendment, in that other members of the press were allowed the free use of their reporting tools. 556 F.2d at See text at note 93 infra. The fourteenth amendment of the U.S. Constitution provides: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, F.2d at The district court noted the impact of television in our modern technological society. "[T]he electronic media, both television and radio, have become an integral part of the national communication system by which out people obtain the information upon which to form their judgments about national policies." 424 F. Supp. at The closest factual situation to Garrett occurred in the unreported case from the United States District Court for Utah of Kearns-Tribune v. Utah. See notes infra. The press media plaintiff in Kearns sought to overturn a Utah statute denying them any access to the Gary Gilmore execution. However, the specific issue presented in Garrett, the right to film an execution, was not tested. 11. The rationale behind the ruling in Garrett, which denied televised press access to executions, has already been challenged. See KQED, Inc. v. Houchins, 546 F.2d 284 (9th Cir. 1976). There, the Ninth Circuit Court of Appeals affirmed the order of the Federal District Court for the Northern District of California, which granted the news madia access to county jail facilities. Id. at 286. It also allowed the news personnel to utilize photographic and sound equipment when interviewing inmates in order to provide full and accurate coverage of the Santa Rita facilities. Id. at 285. Sheriff Houchins of Santa Rita applied to the United States Supreme Court for a stay of the order. Houchins v. KQED, Inc., 97 S. Ct. 773 (1977). Mr. Justice Rehnquist granted the stay and certiorari was granted on May 23, S.Ct (1977). Mr. Justice Rehnquist noted the disparity between the Houchins. decisions and 1974 prison access cases where the press' right to access was limited to that of the general public. 97 S. Ct. at 774. See also SUFFOLK L. REV. 1354, 1366 (1977). There the author suggests that the Pell and Saxbe decisions, (See note 27 infra), which held that no greater access to prison should be given to the press than that allowed to the general public, should not be given a literal interpretation in deciding Houchins. Rather, suggests the author, those cases should be interpreted by the Supreme Court so as to allow press communication with inmates and the use of technical equipment. 12. See Amicus Curiae Brief for Appellee, Garrett v. Estelle, 556 F.2d 1274

3 1978] CONSTITUTIONAL LAW 1033 what constitutes "cruel and unusual punishment. ' 13 Further, Garrett leaves open the question of determining the permissible balance between the state's right to exercise discipline within its prisons and the first amendment rights of the press, the prisoners, and the public. 14 Of significance is the suggestion that the limitations imposed by Garrett significantly restrict the public's right to be informed of adverse prison conditions. 15 FACTS AND HOLDING Tony Garrett, a television cameraman for public television station KERA in Dallas, asked the State Department of Corrections for permission to film executions and to conduct individual interviews with death row inmates. 16 In November, 1976, Garrett's request was denied, because a news reporter was not one of the persons specifically permitted by statute to attend an execution. 17 In December, 1976, Garrett filed suit against the Director of the Texas Corrections Department and sought to have that section of the criminal code declared unconstitu- (5th Cir. 1977). This amicus curiae brief was filed on behalf of the Reporter's Committee on Freedom. Id. at The News Media & the Law 8, 9 (Oct. 1977). Regarding the gravity of the death penalty, the district court noted that [t]he carrying out of the death penalty... is the ultimate act of state... [U]nder the Texas statute a specific jury finding is required to the effect that it is probable that the defendant would commit criminal acts of violence constituting a continuing threat to society before the death penalty can be assessed. 424 F. Supp. at Although Garrett does not establish boundaries between press rights and prison restrictions, these boundaries are discussed in other cases. For a general discussion of the scope of prison access, see Note, Public and Press Rights of Access to Prisoners After Branzburg and Mandel, 82 YALE L.J. 1337, (1973). There, it is suggested that in the later cases involving a reporter's right to conduct interviews of particular inmates in prisons, the recognition of such a right has been based not so much on any special reporter's right to gather information, but rather on the right of access available to the public generally, which protects a reporter as well as anyone else. See, Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Washington Post Co. v. Kleindienst, 357 F. Supp. 179 (D.D.C. 1972); Burnham v. Oswald, 342 F. Supp. 880 (W.D.N.Y. 1972). For a review of recent court decisions in which first amendment claims of the press have prevailed over restrictive prison policies limiting the rights of the press to conduct certain interviews within prison confines, see Significant Developments, Freedom of Speech and of the Press: Prison Regulations Limiting Press Access to Prisoners Held Unconstitutional, 54 B.U.L. REV. 670 (1974) F.Supp. at F.2d at See TEX. CODE CRIM. PROC. AN. art (1965) regarding the execution procedure note 5 supra. Similarly, Garrett's request to interview deathrow inmates was denied on the grounds that he was not a person described in the statute. Texas Code of

4 1034 CREIGHTON LAW REVIEW [Vol. 11 tional. 18 In addition, he requested an order to allow him the right to film the executions and to meet with condemned prisoners. 19 In an opinion filed in the United States District Court, Judge Taylor agreed with Garrett's position. Accordingly, he ordered the prison officials to allow the reporter to conduct interviews and to film executions. 20 The district court stated that first amendment protection for news gathering in prisons could not be diminished by state officials unless "compelling and factually demonstrable reasons" for the ban could be manifested. 21 As additional support for the decision, Judge Taylor distinguished the broadcast of television executions from the broadcast of Criminal Procedure, article deals with those persons who are permitted to interview or talk with a condemned man. Upon the receipt of such condemned person by the Director of the Department of Corrections, he shall be confined therein until the time for his execution arrives, and while so confined, all persons outside of said prison shall be denied access to him, except his physician and lawyer, who shall be admitted to see him when necessary to his health or for the transaction of business, and the relatives, friends and spiritual advisors of the condemned person, who shall be admitted to see and converse with him at all proper times, under such reasonable rules and regulations as may be made by the Board of Directors of the Department of Corrections F.2d at Since 1924, when Texas determined that the electric chair would be the instrument of capital punishment, Texas had followed an open door policy and allowed access to the press to interview death row prisoners and to witness executions. Upon being advised of the applicable Texas rules of procedure for executions and death row interviews, see note 17 supra, W.J. Estelle, Jr., Director of Texas Department of Corrections, determined that the press should be denied all access to death row inmates and executions. 424 F. Supp. at F.2d at F. Supp. at 473. The court: (1) issued a preliminary injunction against the enforcement of prison officials of article of the Texas Code of Criminal Procedure, which banned press access to death row inmates; (2) ordered the re-institution of an earlier policy which permitted interviews with death row inmates; and (3) ordered that Tony Garrett be permitted to attend, to film, and to act as the pool representative for the entire electronic media at any execution. 21. Id. In other first amendment prison related cases, courts have suggested various standards which must be met in order to restrict first amendment news gathering rights. In Seale v. Manson, 326 F. Supp. 1375, 1382 (D. Conn. 1971), the court established a standard whereby prison officials must satisfy a "clear and present danger" test. The court ordered that there could not be any censorship or exclusion of reading material, unless it could be shown that such reading materials presented a clear and present danger to prison morale, morality, discipline, or security. In Sostre v. Otis, 330 F.Supp. 941 (S.D.N.Y. 1971), the plaintiff sought to enjoin interference by prison officials of the receipt of literature ordered through the mail. The court granted the injunction, stating: [W]e would be loath to find that an individual's right to read such literature as he chooses, provided no substantial danger of disruption is presented, is expressly or impliedly lost upon his incarceration... or that this right is any less significant than the right to be free from arbitrary, capricious, or unwarranted punishment. Id. at 945. See also

5 1978] CONSTITUTIONAL LAW 1035 courtroom trials, by noting that the problems of distraction and unfair trials are not present at executions. 22 In February, 1977, the state of Texas announced that it would comply partially with the decision of the district court. In addition to allowing death row interviews, the state would also permit the filming of such interviews. 23 The prison officials further agreed to permit two "pool" reporters from press wire services to view personally any executions and to allow other members of the press to watch on closed circuit television in a monitor room. 24 However, the state objected to that portion of the district court's opinion which allowed the news media to Knuckles v. Prasse, 435 F.2d 1255 (3d Cir. 1970); Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970) F. Supp. at 472. Rideau v. Louisiana, 373 U.S. 723 (1963) involved one of the most shocking examples of the damage which unrestrained press coverage can do to an accused's right to a fair trial. The defendant had been apprehended by Louisiana police and accused of bankrobbery, kidnapping, and murder. A filmed interview from the defendant's jail cell was televised. Surrounded by the sheriff and two state troopers, and in response to leading questions by the sheriff, he confessed to the commission of robbery, kidnapping, and murder. The United States Supreme Court characterized the press coverage and trial in this case as a "kangaroo court" proceeding which constituted a real deprivation of due process of law. Id. at 726. See also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965) F.2d at Id. See note 19 supra. This procedure was in compliance with the previous prison media policy that had been promulgated by the Texas Department of Corrections. The policy is as follows: Media Policy: Execution Proceedings One Texas bureau representative designated by the Associated Press and one Texas bureau representative designated by the United Press International will be admitted to the execution chamber as witnesses, provided those designated agree to act as pool reporters for the remainder of the media present and to meet with all media representatives present immediately subsequent to the execution. The remainder of the media shall be allowed to witness the execution via closed circuit television monitors. -Press interviews of condemned prisoners shall be scheduled by the Public Affairs Office and conducted at the Ellis Unit each Wednesday during the hours of 9:00-11:00 A.M. -No press interviews of the condemned shall be allowed at the Huntsville Unit. -Only properly credentialed press will be admitted to witness the execution. -No recording devices, either audio, or video, small [sic] be permitted either in the execution chamber of monitor room. -All persons entering the monitor area shall submit to electronic surveillance. Any person detected attempting to introduce recording equipment into the monitor area shall be excluded automatically. -No video tapes shall be made from the monitor system. -TDC shall provide the press the following data:... Historical data concerning the death penalty... Public record information concerning the condemned (Name, D.O.B., Race, County of Conviction, Date Received)... Photograph of condemned 556 F.2d at 1276 n.1.

6 1036 CREIGHTON LAW REVIEW [Vol. 11 film executions, and it was that section of the ruling that the state of Texas appealed to the Fifth Circuit Court of Appeals. 25 On August 3, 1977, the Fifth Circuit Court of Appeals reversed the decision of the district court, and held that Texas did not have to allow televised executions. 26 The court based its decision on the same rationale which had been enunciated earlier by the United States Supreme Court in the 1974 prison interview cases. 27 In those cases, the Court held that the Constitution did not impose "the affirmative duty to make available to journalists sources of information not available to members of the public generally. ' ' 28 Consequently, the Fifth Circuit Court of Appeals held that since the general public is not allowed to be present at executions within Texas prisons, reporter Tony Garrett was not allowed to be present. Further, he had no special first amendment right to film executions. 29 The court stated that the press has no greater first amendment right to gather news than the right of the general public to receive information. 30 BACKGROUND Tony Garrett's demand for access to the Texas prison system was based on a first amendment freedom of the press F.2d at Id. at Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974). Both cases held that restrictions on the press' access to individual inmates for the purpose of interviews were valid. The Court in Pell held that the first amendment does not guarantee the press a constitutional right of access not available to the public generally. 417 U.S. at See also Washington Post Co. v. Kleindienst, 357 F. Supp. 770 (D.D.C. 1972), wherein the reasons offered by the Federal Bureau of Prisons for its absolute ban on any inmate interviews were enumerated: (1) Excessive press attention to a relatively few notorious prisoners has detracted measurably from their rehabilitative treatment and imposed administrative difficulties. (2) When press interviews are held they receive immediate wide attention throughout the prisons and the importance of the prisoner interviewed is exaggerated among other inmates. Thus prisoners receiving wide press attention may become "big wheels" and have their status within the prison community enhanced to a point that seriously interferes with effective discipline. (3) A few prisoners may use the medium of the press to foster revolt within the walls. All news that goes out comes back in by newspaper, television and radio. Angry words, false accusations and protest geared to violence can light a fuse that erupts the pent-up emotions of inmates who may feel neglected or abused. Id. at 774. The court stated that these factors were supported by experience, but that they were insufficient to justify a total or blanket denial of press access. Id U.S. at F.2d at Id.

7 1978] CONSTITUTIONAL LAW 1037 claim. 3 1 Included within the parameters of this first amendment press privilege is the right to gather news. 32 However, the right to gather news does not include within its scope an absolute right of access to the sources of newsworthy information. 33 The press' right to access has traditionally been balanced against both the state's legitimate interest in restricting access to certain sensitive areas and the individual citizen's right to privacy. 34 In Washington Post Co. v. Kleindienst, 35 the United States District Court for the District of Columbia attempted to balance the state's interest in prison security against the press' right to access. 36 The court noted that while the first amendment right to publish has been firmly established, "[t]here is, of course, an absolute right of privacy which the press cannot invade." 37 Upon remand of the case, 38 the district court clarified its earlier F.2d at See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), wherein Mr. Justice White defined the role of the first amendment: "It is the purpose of the First Amendment to preserve an uninhibited market place of ideas in which truth will ultimately prevail... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experience which is crucial here." Id. at Branzburg v. Hayes, 408 U.S. 665 (1972). "Without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681. As a limitation on this right, however, the Court held that the first amendment did not relieve a newspaper reporter from his obligation to respond to a grand jury subpoena, and that there was no first amendment testimonial privilege whereby a reporter would be free to refuse to respond. Id. at Zemel v. Rusk, 381 U.S. 1 (1965). In Zemel the Department of State refused to validate a United States citizen's passport for travel to Cuba as a tourist. The reason for the trip was to satisfy the tourist's curiosity about the state of affairs in that country. The Court held that the passport invalidation was not a denial of a citizen's first amendment rights. Id. at 16. The Court illustrated its holding by using the prohibition of unauthorized entry into the White House as an example. The Court noted that, while this entry prohibition diminishes a citizen's opportunity to gather information concerning the manner in which the country is being run, it obviously does not make entry irito the White House a first amendment right. Id. at Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (3d Cir. 1958). In the interest of an individual's privacy, the court sustained the constitutional validity of a court order imposing restrictions upon the taking of photographs in or near the courtroom. Id F. Supp. 770 (D.D.C. 1972). 36: Id. at The press plaintiff in the Washington Post case argued thai the Federal Bureau of Prison's policy, which flatly prohibited any interviews of prisoners, regardless of the prisoner's status or offense, contravened the first amendment. The plaitiff emphasized its desire to interview only those prisoners willing to be interviewed. Further, the press expressed its willingness to comply with reasonable restraints as to the time, place, and manner of the interviews. Id. at 771. The court agreed with the media plaintiff and declared that the absolute ban on press interviews was violative of the first amendment. Id. at Id. at Id. at The district court had entered judgment for the plaintiff.

8 1038 CREIGHTON LAW REVIEW [Vol. 11 holding by noting that prison walls do not create zones of absolute privacy. 39 Indeed, prison authorities were found to have an affirmative obligation to provide some form of access to the press in order that the activities within such institutions may be subject to public scrutiny. 40 Two years later, in Pell v. Procunier, 4 1 the United States Supreme Court was required to balance the state's interest in maintaining prison discipline against the state's obligation to keep the public informed of prison conditions. In that case, several California State Prison inmates and members of the press challenged a section of the California Department of Corrections Manual as violative of the first and fourteenth amendments. 42 This provision, while not totally banning all press interviews with inmates, prohibited press interviews with specific individual prison inmates. 43 As a justification for the prohibition, the state asserted that interviews of individual inmates provided the inmate with a celebrity status within the prison. 44 This celebrity status was, in turn, a disruptive influ- Judgment was stayed by the United States Supreme Court pending appeal to the District of Columbia Court of Appeals. Washington Post Co. v. Kleindienst, 406 U.S. 912 (1972). However, the District of Columbia Court of Appeals remanded the case for additional findings. Washington Post Co. v. Kleindienst, 477 F.2d 1168 (D.C. Cir. 1972) F. Supp. at Id. For a discussion of the right of the public to be informed and to scrutinize prison activities, see Note, The Public's Right to Know: Pell v. Procunier and Saxbe v. Washington Post Co., 2 HASTINGS CONST. L.Q. 829 (1975) U.S. 817 (1974). See note 27 supra U.S. at Section provides that "[piress and other media interviews with specific individual inmates will not be permitted." 417 U.S. at 819. Compare Texas Code of Criminal Procedures, articles and 43.20, see notes 5, 17 supra, which were declared unconstitutional by the district court in Garrett, because they effectively prohibited press attendance at executions. 424 F. Supp. at 473. Texas Code of Criminal Procedure, article provided: "Upon the receipt of such condemned person by the Director of the Department of Corrections, he shall be confined therein until the time for his execution arrives, and while so confined, all persons outside of said prison shall be denied access to him..." This provision allows exceptions for lawyers, clergy, family, and the like to visit the prisoner at proper times. 556 F.2d at 1276 n U.S. at Id. at The Court noted that before the imposition of the ban on interviews with individual inmates, press attention had concentrated on a relatively small number of prisoners. As a result, these prisoners became virtual "public figures" within the prison society and that these same figures were often instrumental in disrupting prison discipline. Id. In Seale v. Manson, 326 F. Supp. 1375, 1383 (D. Conn. 1971), the court stated that a prison regulation which allowed reporters access to prison for stories on prison life and conditions, but denied press interviews with individual inmates without the permission of the Commissioner, was justifiable. It stated that "prison officials believe that there must be a limitation on interviews of inmates by members of the press in order

9 1978] CONSTITUTIONAL LAW 1039 ence on prison discipline. 4 However justified the state might have been in denying individual prisoner interviews, 46 the California press did not base its claim on any prisoner right. The journalists contended: [I]rrespective of what First Amendment liberties may or may not be retained by prison inmates, members of the press have a constitutional right to interview any inmate who is willing to speak with them, in the absence of an individualized determination that the particular interview might create a clear and present danger to prison security or to some other substantial interest served by the corrections system. 47 Thus, the California press claimed that the state prison regulation unconstitutionally denied the press its right to a newsworthy source of information. 48 In Pell, the United States Supreme Court rejected the jourto avoid a prisoner gaining such notoriety that he becomes set apart and a 'wheel' within the institution." Id U.S. at 832. See Durnham v. Oswald, 342 F.Supp. 880 (W.D.N.Y. 1972). New York correctional authorities argued that press access should be denied altogether at Attica after the riot in September, 1971, presumably under the theory that previous press coverage may have been one of the original sources of revolt within the prison walls. At a special hearing, the court agreed to give deference to the prison officials and deny any press access during the time immediately surrounding the Attica riots. Id. at 883. However, the press plaintiffs ultimately prevailed and were granted access for interviews. Id. at 885. Similarly, in Hillery v. Procunier, 364 F.Supp. 196, 198 (N.D. Cal. 1974), the court concluded that revolt within the prison was a justification for adopting an interview ban. "During an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews...." Id. 46. For a discussion of the first amendment rights retained by prisoners and a list of prison justifications for limiting prisoners' first amendment rights, see Hollen, Emerging Prisoners' Rights, 33 OHIO STATE L.J. 1 (1972). Various cases have dealt with a prisoner's right to contact the press. In Nolan v. Fitzpatrick, 326 F. Supp. 209 (D. Mass. 1971), the court held that prisoners were entitled to write to any news media or news representative an unsealed letter concerning prison management, treatment of offenders, or personal grievances. Letters which presented no risk to prison discipline or administration were to be mailed rather than withheld or returned. Id. at But see Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I. 1970). There the court did not allow the limited type of inmate mail censorship that Nolan permitted. The court stated that the reading of any outgoing mail from the inmates was a violation of their first amendment rights. Unless done pursuant to a duly obtained search warrant, no mail should be opened or inspected. However, it should be noted that Palmigiano involved persons being held for trial, and not prisoners already convicted. Id U.S. at Id. at For a general discussion of what constitutes the press' right to gather information, see Note, The Rights of the Public and the Press to Gather Information, 87 HARv. L. REV (1974).

10 1040 CREIGHTON LAW REVIEW [Vol. 11 nalists' claim by pointing out that prior to the promulgation of the challenged section, journalists had virtually free access to interview any individual inmate with whom they wished to speak. 49 Since the general public was not allowed this type of access to individual inmates, the California regulation merely eliminated a special privilege previously granted to the members of the press. 50 Accordingly, the Supreme Court held that the challenged section was not violative of the first amendment right of the press to gather information in that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public. '51 On the same day that the United States Supreme Court handed down its decision in Pell validating the California prohibition of individual inmate interviews, it reiterated its position extensively in the companion case of Saxbe v. Washington Post Co..52 The decision in Saxbe was an extension of the 1972 Ninth Circuit Court of Appeals decision in Seattle-Tacoma Newspaper Guild, Local 82 v. Parker. 53 In both instances, the Courts upheld the validity of the same federal prison regulation, which prohibited press interviews of prisoners. 54 However, in Seattle- Tacoma, the Ninth Circuit Court of Appeals was careful to limit its holding to interviews in maximum security institutions. Referring exclusively to the validity of the individual inmate interview prohibition in maximum security prisons, that court stated: "Our holding today does not concern the application of the regulation to the wide variety of other institutions employed in the incarceration and rehabilitation of federal offenders. 5 5 In contrast to Seattle-Tacoma, the institution involved in Saxbe was a medium security institution. The Washington Post Co. had challenged the application of the prison interview poli- 49, 417 U.S. at Id. See Comment, 9 U.S.F. L. REV. 718 (1975). The article suggests that the press should be granted a right of access greater than allowed to the public generally. Id. at U.S. at U.S. 843 (1974). Pell and Saxbe were both decided on June 24,1974. The Court in Saxbe cited Pell extensively as authority for its decision. Id. at , F.2d 1062 (9th Cir. 1973). 54. Saxbe, 417 U.S. at 844; Seattle-Tacoma, 480 F.2d at Section 4b(6) of Policy Statement A of the Federal Bureau of Prisons provides: Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public, if it is limited to the discussion of institutional facilities, programs and activities F.2d at 1067.

11 1978] CONSTITUTIONAL LAW 1041 cy ban to medium and minimum security institutions. 6 During the course of the litigation, the federal regulation was amended to permit press interviews with individual inmates at minimum security federal prisons. However, interviews of individually designated inmates were still prohibited at three-quarters of the federal prisons. 5 7 In upholding the federal regulation as it applied to medium and maximum security institutions, the Saxbe Court stated: "[T]hat the Constitution imposes upon the government the affirmative duty to make available to journalists sources of information not available to members of the public generally... finds no support in the words of the Constitution or in any decision of this Court. ' 58 Thus, Saxbe extended the scope of the federal interview restriction beyond the boundaries of the maximum security facility of Seattle-Tacoma to include medium security facilities as well. 5 9 The Seattle-Tacoma, Pell, and Saxbe trilogy of inmate interview decisions established a judicial sanction of prison regulations which place limited restrictions on the first amendment rights of the press to gather news. Furthermore, these decisions manifested a judicial approval of a wide discretionary power in prison officials to determine what limitations on press access are reasonable. 60 Additionally, the trilogy established a body of precedent which was used in the determination of the rigkts of tke press in the controversial Gilmore execution. Kearns- Tribune v. Utah 6 1 was an action by the Salt Lake City Tribune and Salt Lake City television station KUTV. 62 The Utah television and newspaper media sought to overturn a state law that U.S. at Id. 58. Id. at 850 quoting Pell v. Procunier, 417 U.S. 817, (1974). 59. Saxbe did not deal with the extension of the federal interview restriction to minimum security facilities. As noted earlier, the prison interview restriction had been lifted from minimum security institutions, rendering the question of its validity moot to the Saxbe Court. See text at note 56 supra F.2d at The Seattle-Tacoma court upholding the ban on inmate interviews stated that the "ban is reasonable action within the scope of the wide discretion of the prison administrators and that it does not violate the prisoners' First Amendment rights." See Pell v. Procunier, 417 U.S. 817, 825 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 849 (1974). 61. This was a 1977 unreported decision from the United States District Court for Utah, which was discussed in 1 The News Media & the Law 8, 9-10 (Oct. 1977). 62. Id. at 9. The Tribune in an earlier suit had been granted a temporary restraining order by Judge Willis W. Ritter of the United States District Court for Utah to bar enforcement of the Utah prison no-interview policy. This allowed the Tribune to interview convicted killer Gary Gilmore. However, the

12 1042 CREIGHTON LAW REVIEW [Vol. 11 excluded the press from witnessing prison executions. 63 The Utah statute limited attendance at executions to a physician, the county attorney, one or two clergymen, and up to five friends or relatives of the condemned man. 64 The press argued that the Utah statute violated their first amendment rights to gather news, and unconstitutionally discriminated against them because it allowed relatives and friends to attend executions and set an arbitrary limit on the number of persons who could attend. 65 The state of Utah replied that since the general public was not allowed to attend, the 1974 interview access cases 66 denied the press any constitutional right to attend the executions. On January 13, 1977, the Utah federal district court upheld the Utah statute, and ruled that the press could not attend the firing squad execution. 67 The court noted that it based its decision on the precedents established in the interview access decisions. 68 "It appears from the testimony and the arguments submitted that the statute seeks to avoid sensationalizing the event. Further, the statute reflects the concerns of institutional discipline and security as well as a reasonable deference to the privacy of the condemned man under these circumstances. " ' 69 The Utah District Court concluded by noting: "There are rational concerns as a basis for this state legislation. Where a rational basis exists for state legislation, the court is not to legislate otherwise by substituting its own judgment of what is reasonable. '7 0 Against this background of judicial ratification of prison regulations limiting press access to prisons, the Fifth Circuit Court of Appeals faced the question of the filming of an execution. In facing the unique issue of a televised execution, the line United States Court of Appeals for the Tenth Circuit vacated the district court's order. Kearnes-Tribune Corp. v. Utah Board of Corrections, No. C (D. Utah 1976), vacated, No. A-488 (10th Cir. 1976). Id. at 9, Id. at 10. The Utah law, which limited the number of persons who may witness an execution, was similar to the execution attendance statute in Garrett. See note 5 supra The News Media & the Law, supra note 61, at Id. 66. Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974). The 1974 interview access cases were also advanced as the controlling law in Garrett, and the Fifth Circuit Court of Appeals upheld this argument. 556 F.2d at The News Media & the Law, supra note 61, at Id. 69. Id. 70. Id.

13 1978] CONSTITUTIONAL LAW 1043 of precedent established by the 1974 prison interview cases" l and culminating in the Kearns decision was not to be deviated from in Garrett. ANALYSIS BY THE COURT In Garrett v. Estelle, the Fifth Circuit Court of Appeals was faced with only one question: whether a news cameraman can require the state of Texas to permit him to film for television an execution in the state prison. 72 The Garrett court answered in the negative and stated: "We hold that the protection which the first amendment provides to the news gathering process does not extend to matters not accessible to the public generally, such as filming of executions in Texas state prison, and therefore that Garrett has no such right." 7 " Initially, the court in Garrett recognized that news gathering by the press falls within the protected sphere of first amendment rights, 7 4 as recognized by the United States Supreme Court in Branzburg v. Hayes. 75 "Without some protection for seeking out the news, freedom of the press could be eviscerated. 7 6 However, the Garrett court noted that Branzburg also limited first amendment protections available to the press. "It has generally been held that the first amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." 77 The Garrett court found additional support in the United States Supreme Court decision of Zemel v. Rusk. 78 There, the Supreme Court recognized that any restrictions on access to inmates involve impingement to some degree on first amendment rights. 79 However, it noted that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Pell and Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974). But see McMillan v. Carlson, 493 F.2d 1217 (1st Cir. 1974), in which an author was allowed to interview the brother of James Earl Ray, the convicted assassin of Martin Luther King. This interview was necessary to obtain information concerning the assassination, which was a subject of great public interest. Id. at F.2d at Id. at Id. at U.S. 665, 667 (1972). 76. Id; at F.2d at 1277 (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972)) U.S. 1 (1965). 79. Id. at 17. For a discussion of instances where first amendment rights have been impinged upon beyond constitutionally permissible limits, see generally Note, Freedom of Speech and of the Press: Prison Regulation Limiting Press Access to Prisoners Held Unconstitutional, 54 B.U.L. REV. 670 (1974) U.S. at 17.

14 1044 CREIGHTON LAW REVIEW [Vol. 11 The Fifth Circuit recognized that although precedent had established protection under the first amendment to the news gathering rights of the press, there were limits on those rights. The court relied heavily on the United States Supreme Court's decisions in Pel1 81 and Saxbe 82 to determine what are the permissible limitations of the news gathering rights. Emphasizing the permissibility of restricting press access, the court noted: "The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public 83 generally. Garrett and a press group in an amicus brief 84 attempted to distinguish the decisions in Pell and Saxbe from the issues in Garrett by arguing that in the former cases, the press was allowed substantial access to the prisons, except for the limitation on interviews with specific inmates. 85 Garrett, the press argued, was not an access case at all, but rather a case involving a limitation on the content of what may be reported once access has been granted. 8 6 The court dismissed this argument by stating: "In order to sustain Garrett's argument we would have to find that the moving picture of the actual execution possessed some quality giving it 'content' beyond, for example, that possessed by a simulation of the execution." 87 The Fifth Circuit Court summarily dismissed the issue of U.S. 817 (1974) U.S. 843 (1974) F.2d at 1277 (quoting Pell v. Procunier, 417 U.S. 817, 834 (1974)). 84. Amicus Brief for Appellee, Garrett v. Estelle, 556 F.2d at 1275 (Filed by Reporter's Committee on Freedom) F.2d at Both Pell and Saxbe decisions contained dissenting opinions which opposed the majority holding that the prison regulations in those cases allowed substantial access. In Pell, Mr. Justice Douglas stated that the press does not enjoy substantial access when it merely has the same rights of access to the prisons as the public generally. Mr. Justice Douglas considered the total ban on interviews with individual inmates a far broader restriction on first amendment rights than justified by any governmental interest in prison security. 417 U.S. at 841 (Douglas, J., dissenting). Mr. Justice Powell, in his dissent in Saxbe, stated that the random inmate interviews permitted by the federal prison regulation were insufficient to insure adequate reporting. Mr. Justice Powell noted that the reporter's face to face interview with an inmate is analogous to the attorney's opportunity to cross examine at trial. Only in this manner can the ethical reporter receive the credibility and sincerity of his prison source. There is no substitute for this form of access either through the mails or random conversations during supervised tours. 417 U.S. at (Powell, J., dissenting) F.2d at Id.

15 19781 CONSTITUTIONAL LAW '1045 public controversy. In the opinion of the lower district court, Garrett should have been allowed to film an execution which is "one of the most important and controversial public issues of the day" and which "should be accompanied in a democratic society by the widest possible public knowledge and information." 88 However, the court of appeals noted that the protections of the first amendment do not depend upon the notoriety of the issue, and further stated that "[t]he Supreme Court has held that the first amendment does not protect means of gathering news in prisons not available to the public generally, and this holding is not predicated upon the importance or degree of interest in the matter reported. '89 The Fifth Circuit Court of Appeals, again relying on the holdings in Pell and Saxbe, rejected the contention of the lower court that a "compelling" state interest must be demonstrated before Garrett could be restrained from the exercise of his asserted first amendment right to film executions. 90 The court noted that "[b]alancing a public interest against an individual's constitutional right has been used when the two are found to be inconsistent." 91 However, the court reasoned that since "Garrett cannot find his right to film Texas executions in the first amend F. Supp. at 471. See Note, The Rights of the Public and the Press to Gather Information, 87 HARV. L. REV (1974), where it is suggested that conditions in prisons are matters of public interest; however, these conditions are largely hidden from public view. Thus, interviews by the press are necessary to inform the public of prison conditions where interviews by members of the public are prohibited. Id. at F.2d at Id. Other courts have agreed with the lower court decision in Garrett that a "compelling interest" must be demonstrated to restrict access. In Burnham v. Oswald, 342 F. Supp. 880 (W.D.N.Y. 1972), the court held "that an interview with a consenting inmate must be permitted unless it is determined that to hold the interview would present a clear and present danger" to prison security. Id. at 887. See N.A.A.C.P. v. Button, 371 U.S. 415, 444 (1963) (the government must show a substantial regulatory interest before legislation or regulations infringing upon first amendment rights will be validated); Washington Post Co. v. Kleindienst, 357 F. Supp. 779, 783 (D.D.C. 1972) (the court invalidated prison regulations, stating "the Government has totally failed to demonstrate any 'compelling' or 'paramount' need"). But see Pell v. Procunier, 417 U.S. 817 (1974), where the Court applied an alternative means test. "Accordingly, in light of the alternative channels of communication that are open to prison inmates, we cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional" (footnotes omitted). Compare Kleindienst v. Mandel, 408 U.S. 753 (1972) (the Court rejected an alternative means rest and stated: "[W]e are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest... in this particular form of access"). Id. at F.2d at 1279.

16 1046 CREIGHTON LAW REVIEW [Vol. 11 ment," there is no individual constitutional right to be balanced against the interests of the state of Texas. 92 Finally, the Fifth Circuit Court of Appeals rejected the claim that the state of Texas was discriminating against television reporters. In dismissing the fourteenth amendment challenge, the court noted that "[t]he Texas media regulation denies Garrett use of his camera, and it also denies the print reporter use of his camera, and the radio reporter use of his tape recorder." 93 The court concluded by stating that its decision was merely a validation of the official policy adopted by the state of Texas in This policy grew out of' the United States Supreme Court decision in Holden v. Minnesota, 95 in which public executions were abolished.6 The Fifth Circuit Court of Appeals reasoning that the filming of an execution would be the equivalent of a public execution, stated: "We will not in this case frustrate the official policy of the State of Texas by requiring access to a news cameraman for filming for television executions in state prison, under the guise of protecting first amendment rights. '97 ANALYSIS The Fifth Circuit Court of Appeals in Garrett v. Estelle recognized that news gathering is protected by the first amendment, a principle which was specifically articulated in Branzburg 98 and affirmed in subsequent cases. 9 9 Having noted this principle, the Garrett court chose to rely heavily on the 1974 Supreme Court prison inmate interview decisions as a basis for 92. Id. 93. Id. 94. Id. at U.S. 483 (1890). 96. Id. at 486. In Holden, the United States Supreme Court rejected the right of the public to view executions. The Court upheld the Minnesota regulations which restricted the rights of the public generally, and excluded all reporters or representatives of newspapers specifically. Id. at 491. The Court also held as valid the restriction on the press that "[n]o account of the details of such execution, beyond the statement of the fact that such convict was on the day in question duly executed according to law, shall be published in any newspaper." Id. at F.2d at For Mr. Justice White's analysis of the purpose of the free press clause of the first amendment in Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), see note 31 supra U.S. at Pell v. Procunier, 417 U.S. 817,834 (1974). Saxbe v. Washington Post Co., 417 U.S. 843, (1974). For a general discussion of the news gathering right, see Note, Public and Press Rights of Access to Prisoners After Branzburg and Mandel, 82 YALE L.J. 1337, (1973). The author there notes that in later