Introduction -- Journalists' right of access -- Access to prisons and prisoners

Whether a reporter wants to cover a demonstration on the courthouse steps, a crime that occurred in someone’s home or the execution of a condemned inmate, the first hurdle to overcome is gaining access to the scene of the event.

A reporter’s success may depend on the kind of property to which access is sought.

News events often occur in public forums — property that is publicly owned and open to the general public, such as city parks or sidewalks where demonstrations take place. But government property that is not generally open to the public as a forum — such as courthouses, jails, government offices and city halls — is called “nonpublic forum public property.”

Private property generally presents more difficult access problems than public property. In most situations, the property owner cannot be forced to allow a reporter to cover an event or interview an individual on the premises. However, some courts have drawn distinctions between private property used for a private purpose, such as a person’s home, and private property used for a public purpose, such as a shopping center. Some states treat the latter as a type of public forum.

 

Journalists’ right of access

Although the U.S. Supreme Court has said newsgathering deserves some First Amendment protection, it has never defined clearly the scope of that protection, nor restrictions that may be placed upon reporters’ activities.

Most courts have ruled that the First Amendment provides journalists no greater right of access to property than that enjoyed by the public. Therefore, when an event occurs on nonpublic forum public property or private property, reporters may not have the right to enter if the general public is not usually allowed in.

Generally, a court contemplating denying access to nonpublic forum public property must weigh the public interest in obtaining information against competing interests. A minority of courts recognize that if the First Amendment right to publish depends upon the ability to gather news, the media’s ability to inform the public is diminished when the right to gather news is impeded.

Although state and local governments may not limit or deny the public or the media access to public forums, they may impose reasonable time, place and manner restrictions on activities taking place on public property. For example, a city government reasonably could grant a parade permit that restricted a group from marching through the business section of town at rush hour.

But these restrictions must be content neutral, be narrowly tailored to serve a significant government interest, and leave open alternative channels of communication.

Government agencies generally succeed in limiting media access to nonpublic forum public property where they showed that newsgathering would interfere with the normal operation of facilities. In addition, new security measures since September 11, 2001, often require background checks and security screening of reporters covering public facilities such as state capitols and city halls.

 

Access to prisons and prisoners

The media have a right of access to report on prisons in general. But prison officials’ arguments that granting journalists interviews with specific inmates might allow some prisoners to gain “a disproportionate degree of notoriety and influence among their fellow inmates” or might affect prison security or other legitimate penological concerns have persuaded the U.S. Supreme Court to rule repeatedly that the media do not have a right to insist on interviewing specific inmates.1

But just as the media do not have rights greater than the general public, they cannot be denied access that is granted to the general public. If prisoners are allowed to add whomever they choose to their visitor lists, for example, prisons cannot stop them from including members of the news media on those lists. They may, however, forbid journalists to use cameras, recording devices and writing implements if other visitors are not allowed to use them.

The Supreme Court decisions giving prisons discretion to deny media interviews arose in situations where the general public, including the media, were permitted to visit prisons to witness the operation of the facility and where the prisoners had the right to talk to family members or friends about the conditions in the prison. The Court’s decisions are based on the assumption that such access satisfies the public’s interest in the operation of a governmental institution. If this level of access to prisoners is curtailed, the balancing tests could be applied differently.

A prisoner’s right to talk to the media is more well-established than the journalist’s right to talk to a prisoner. The Supreme Court has ruled that prisoners have First Amendment rights that must be taken into account.2 Access issues can thus best be addressed where the one seeking the interview right is the prisoner.

Even though courts have rejected a First Amendment right to interview specific prisoners, most states have statutes or prison rules allowing for some type of access. They usually grant the warden or other prison official authority to deny interview requests under specific circumstances. For example, some of these rules permit only journalists employed fulltime by news organizations to conduct interviews.

Federal prison rules are fairly restrictive, although many journalists have been able to schedule interviews with particular prisoners. However, a federal statute bars interviews with federal death-row inmates.

Some states have adopted strict policies limiting or barring special interviews with prisoners. California decided to ban most face-to-face interviews with specific prisoners in 1996, and a number of other states placed additional limits on interviews soon after.

Journalists who regularly cover prisons should obtain a copy of the state’s department of corrections regulations. Most states’ regulations indicate whom to speak with about access to prisoners, and should indicate the grounds for denial of access. Local prison rules, policies or customs may not be consistent with the state law. Ask the official who denied the request for specific reasons for the denial under the regulation.

If an interview is denied, reporters may be able to overcome official resistance by contacting the inmate through the inmate’s lawyer and asking to be put on the prisoner’s visitor list, or at least a list of those to whom the prisoner can communicate with by phone or mail. Be aware, however, that in many states, prison officials may legally eavesdrop on conversations between inmates and reporters and read inmates’ mail.

Journalists may be able to appeal denials within the state prison system. Procedures should be spelled out in the regulations. However, courts are quick to defer to prison authorities’ decisions to restrict access in the name of institutional security. Arbitrary, discriminatory or unjustified denials are more likely to be overturned by a court.

Executions are undeniably newsworthy events and present another access problem for journalists. A majority of states that allow capital punishment have statutes that specify how many witnesses may attend executions, who may select witnesses and whether reporters must be or may be included. However, one federal appellate court has held that there is no First Amendment right to witness executions.3

No states allow the use of photographic or recording equipment at executions.4  In fact, a federal judge in California ordered that the only known videotape of an execution in the United States be destroyed.5

Rules governing federal executions allow limited access to prisoners during the week before their execution.6  The prisoner, the warden of the facility and the director of the Federal Bureau of Prisons must approve visits by reporters during this time. At the execution itself, media access is left to the discretion of the warden, but the number of media representatives may not exceed 10.


Notes:

1. Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post, 417 U.S. 843 (1974).

2. Turner v. Safley, 482 U.S. 78 (1987)

3. California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998).

4. Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1976).

5. Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994).

6. 28 C.F.R. § 26.4 (1998).