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Hammer v. Ashcroft, PLN Amicus Brief, Cert Petitition to US Supreme Court, 2010

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No. 09-504

IN THE

Supreme Court of the United States
_________________________

DAVID PAUL HAMMER, PETITIONER,
v.
JOHN D. ASHCROFT, ET AL.
_________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_________________________

BRIEF AMICI CURIAE OF THE REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS AND
TWENTY-THREE NEWS MEDIA ORGANIZATIONS
IN SUPPORT OF PETITIONER
_________________________

Lucy A. Dalglish
Counsel of Record
Gregg P. Leslie
John Rory Eastburg
The Reporters Committee for
Freedom of the Press
1101 Wilson Blvd., Suite 1100
Arlington, Va. 22209
(703) 807-2100
(Additional counsel for amici listed in Appendix B.)

 

i
TABLE OF CONTENTS

Table of Authorities .................................................... ii
Statement of Interest.................................................. 1
Summary of Argument ............................................... 3
Argument .................................................................... 5
I. The decision below imperils valuable
communication between inmates and the press .. 5
A. Inmate interviews expose abuse and spur
prison reform .................................................... 6
B. Inmate interviews provide unique
insight into prison conditions .......................... 8
C. Inmate interviews help citizens monitor
how their tax dollars are spent...................... 10
II. The court below erred in approving a policy
that allows no method of uncensored
communication with the press ............................ 12
A. Previous limits on inmate speech allowed
some means of uncensored communication .. 12
B. The Media Policy, as enforced, allows no
unfettered communication with the press .... 14
III. Public oversight of prisons will suffer if this
decision, allowing the content-based
suppression of speech, stands .......................... 17
A. The record shows the rules were an attempt
to keep the viewpoints of death row
inmates from the public ................................. 19
B. The government failed to justify its
“jail celebrity” rationale in this context ........ 22
Conclusion ................................................................. 24

 

 

ii
TABLE OF AUTHORITIES

Abu-Jamal v. Price,
154 F.3d 128 (3rd Cir. 1998)............................. 19
Beard v. Banks, 548 U.S. 521 (2006).......................... 4
Bell v. Wolfish, 441 U.S. 520 (1979) ......................... 17
Houchins v. KQED, 438 U.S. 1 (1978) ................. 5, 22
Johnson v. Avery, 393 U.S. 483 (1969)..................... 13
Johnson v. Stephan,
6 F.3d 691 (10th Cir. 1993)............................... 14
Kimberlin v. Quinlan,
199 F.3d 496 (D.C. Cir. 1999)..................... 18, 19
Nolan v. Fitzpatrick,
451 F.2d 545 (1st Cir. 1971) ............................. 13
Pell v. Procunier, 417 U.S. 817 (1974) ............... passim
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001)........................... 16
Procunier v. Martinez, 416 U.S. 396 (1974) ....... 13, 22
Procunier v. Navarette, 434 U.S. 555 (1978).............. 6
Quinn v. Nix,
983 F.2d 115 (8th Cir. 1993)............................. 18
Salahuddin v. Goord,
467 F.3d 263 (2nd Cir. 2006) ............................ 18
Saxbe v. Washington Post Co.,
417 U.S. 843 (1974)..................................... passim
Sheppard v. Maxwell, 384 U.S. 333 (1966) .............. 13
Shaw v. Murphy, 532 U.S. 223 (2001) ..................... 17

 

 

iii

Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) ........... 18
Thornburgh v. Abbott, 490 U.S. 401 (1989) ............. 13
Turner v. Safley, 482 U.S. 78 (1987) .................. passim
Walker v. Sumner,
917 F.2d 382 (9th Cir. 1990)............................. 18
STATUTES AND REGULATIONS
28 C.F.R. § 540.63 ..................................................... 20
Institution Supplement THA-1480.05A............. passim
U.S. Supreme Court Rule 10(a)................................ 19
U.S. Supreme Court Rule 37 ...................................... 1
OTHER
Noah Bierman and John Pacenti, State drops
effort to try guards for inmate’s death,
THE PALM BEACH POST,
May 11, 2002, at 1A ............................................ 8
Barbara Brotman, Hard Time: Killer Says Prison
Caused the Mental Illness That’s Now
Keeping Him There, CHICAGO TRIBUNE,
Dec. 1, 1991, at 1................................................. 9
Amy Goldstein, A Sept. 11 Detainee’s Long
Path to Release; After Final Glitch, Ivory
Coast Native is Home, THE WASHINGTON
POST, Nov. 12, 2002, at A3 ............................... 10
Amy Goldstein, ‘I Want to Go Home’;
Detainee Tony Oulai Awaits End of
4-Month Legal Limbo, THE WASHINGTON
POST, Jan. 26, 2002, at A1................................ 10

 

 

iv

Amy Goldstein and Dana Priest, Beset by
Medical Problems as She Fights
Deportation, a U.S. Resident Struggles
to Get the Treatment She Needs, THE
WASHINGTON POST, May 12, 2008, at A1 ......... 10
Beth Healy, Breakdown: The Prison Suicide
Crisis; A system strains, and inmates die,
THE BOSTON GLOBE, Dec. 9, 2007, at A1............ 9
Beth Kassab, 5 Guards Go Free in Killing:
Charges will be dropped in the fatal beating
death of death-row inmate Frank Valdes,
ORLANDO SENTINEL, May 11, 2002, at A1.......... 8
Susan Kuklin, NO CHOIRBOY: MURDER, VIOLENCE,
AND TEENAGERS ON DEATH ROW (2008) .............. 9
Meg Laughlin, Inmate Letter Warned of Beatings,
THE MIAMI HERALD, July 27, 1999, at A1 .......... 8
One in 31: The Long Reach of American
Corrections, THE PEW CENTER ON THE STATES,
March 2, 2009, available at
www.pewcenteronthestates.org ....................... 11
Alan Prendergast, Head Games, DENVER
WESTWORD NEWS, September 21, 2006,
available at www.westword.com/2006-0921/news/head-games ......................................... 10
Michael Rezendes and Thomas Farragher,
Patrick aide spurns prison policy change;
Rejects call to ban solitary confinement
for the mentally ill, THE BOSTON GLOBE,
Dec. 12, 2007, at B1 ............................................ 9
Gloria Romero, Access Needed to Report on Prison
Conditions, THE DAILY NEWS OF LOS
ANGELES, April 29, 2004, at N17...................... 11
 

 

v

Rich Rucker, Prisons work to cut inmate abuse,
FLORIDA TIMES-UNION, Nov. 17, 2001, at B1..... 8
Jonathan Saltzman and Thomas Farragher,
Breakdown: The Prison Suicide Crisis;
Guards, inmates a volatile dynamic,
THE BOSTON GLOBE, Dec. 11, 2007, at A1.......... 9
Charles M. Sennott, AIDS adds a fatal factor
to prison assault: Rape Behind Bars,
THE BOSTON GLOBE, May 2, 1994, at B1............ 8
Charles M. Sennott, Prison system enacts
reforms to stop inmate rape, THE
BOSTON GLOBE, Nov. 9, 1994, B1 ....................... 8
Charles M. Sennott, Prison’s hidden horror:
Rape Behind Bars, THE BOSTON GLOBE,
May 1, 1994, at B1 .............................................. 8
Loretta Tofani, Improved Conditions Reduce
Assaults in P.G. Jail, THE WASHINGTON
POST, Dec. 31, 1982, at B1.................................. 7
Loretta Tofani, Terror Behind Bars: Most
Victims of the Sexual Attacks are Legally
Innocent, THE WASHINGTON POST, Sept. 26,
1982, at A1 .......................................................... 7
Loretta Tofani and Tom Vesey, Seven Are
Indicted in Sexual Assaults at Prince
George’s Jail, THE WASHINGTON POST,
Jan. 14, 1983, at A1 ............................................ 7

 

 

1
STATEMENT OF INTEREST1

Amici curiae, described in Appendix A, are
twenty-four of the nation’s leading news media organizations — The Reporters Committee for Freedom
of the Press, Advance Publications, Inc., The American Society of News Editors, The Association of
American Publishers, Inc., The Citizen Media Law
Project, Community Newspaper Holdings, Inc., Cox
Media Group, Inc., The E.W. Scripps Company, The
First Amendment Coalition, The Foundation for National Progress, Gannett Co., Inc., The Hoosier State
Press Association, The Hoosier State Press Association Foundation, The Human Rights Defense Center,
MediaNews Group, National Press Photographers
Association, The New York Times Company, Newspaper Association of America, The Newspaper Guild
– CWA, The Radio-Television Digital News Association, The Society of Professional Journalists,
Stephens Media LLC, Tribune Company, and The
Washington Post.
This case concerns an issue critical to the press
and the public in general: whether the federal government may prohibit death row inmates from talking to the press about the abuse, mistreatment, and
                                                            
Pursuant to Sup. Ct. R. 37, counsel for the amici curiae declare that they authored this brief in total with no assistance
from the parties; that no individuals or organizations other
than the amici made a monetary contribution to the preparation and submission of this brief; that counsel for all parties
were given timely notice of the intent to file this brief; and that
written consent of all parties to the filing of the brief amici curiae has been filed with the Clerk.
1

 

 

2

actions of other inmates; whether it may prohibit all
in-person interviews with death row inmates; and
whether these draconian restrictions may be valid
even where the officials responsible for the rules admitted they were motivated by a desire to keep disfavored viewpoints from reaching the public.

 

 

3
SUMMARY OF ARGUMENT

David Hammer, like other men on the federal
government’s death row, was prohibited from speaking in person with the press. He also was prohibited
from discussing any other inmate whether in person,
by phone, or by letter. Amici urge the Court to accept
this case and make clear that the Constitution does
not allow prison rules that provide inmates no means
of uncensored communication with the press — especially rules enacted with the express purpose of suppressing distasteful viewpoints.
Prohibitions on inmate interviews imperil vital
communication. Through interviews with inmates,
journalists regularly expose prison rape and other
abuse, document poor conditions and unhealthy environments in the nation’s prisons and jails, allow
the public to monitor how its tax dollars are spent
within prisons, and spur reforms across the country.
See infra, Section I.
Recognizing the importance of the First Amendment even in the prison context, this Court in Turner
v. Safley ruled that prisoner speech can be curtailed
only when a regulation “is reasonably related to legitimate penological interests.” 482 U.S. 78, 89
(1987). Among other factors, the test considers
whether there is “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it,” and
whether “alternative means of exercising” First
Amendment rights “remain open to prison inmates.”
Id. at 89-91. This Court repeatedly has made clear
that the Turner factors are “the basic substantive legal standards” for judging regulations like the ones
 

 

4

at issue here. Beard v. Banks, 548 U.S. 521, 528-29
(2006).
But the en banc majority below did not even purport to apply the Turner test, relying instead on earlier cases.2 As a result, the court approved restrictions that prevented death row inmates from having
any uncensored contact with the news media. The
Special Confinement Unit (SCU) Media Policy, as enforced, prohibited Hammer from speaking by any
means about the treatment, conditions, and activities
of other prisoners. Hammer produced evidence that
this was the case, and requested the opportunity to
develop more via discovery. But the case was dismissed before he could do so. See infra, Section II.
Moreover, the en banc court ratified rules that are
unrelated to penological interests. Indeed, there was
not even a pretext of penological concern until after
the rules were implemented. The Attorney General
who ordered the rules announced, at a press conference, that his interest was in preventing the public
from hearing the distasteful viewpoints of federal
death row prisoners. See infra, Section III.

                                                            
For example, the en banc opinion begins by noting that reporters “have no constitutional right of access to prisons or their
inmates beyond that afforded to the general public.” App. 1a
(quoting Pell v. Procunier, 417 U.S. 817, 834 (1974)). This misses the point. Pell dealt with the rights of reporters to gain access to prisons. This case, like Turner, deals with the related
but analytically distinct right of an inmate to speak with the
press.

2

 

 

5

Amici do not dispute that incarceration necessitates some limits on inmate rights and privileges. At
the same time, however, “[p]rison walls do not form a
barrier separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at 84.
This is especially important in the death row context,
because journalists generally cannot learn about
prison conditions from former death row inmates.
The Court should accept this case and make clear
that restrictions on prisoner speech must leave open
some means of uncensored communication with the
news media, and they must be motivated by penological, rather than merely political, interests.
ARGUMENT
I. The decision below imperils valuable communication between inmates and the press.
Inmate interviews are valuable for exposing
abuse, documenting poor conditions and waste in
prisons, and promoting social reform and fiscal responsibility. In recent decades, prisoner interviews
and correspondence have allowed the press to report
about prison rape, prison violence, and the treatment
of vulnerable inmates.3
                                                            
Amici do not “confuse what is ‘good,’ ‘desirable,’ or ‘expedient’
with what is constitutionally commanded by the First Amendment.” See Houchins v. KQED, 438 U.S. 1, 13 (1978). But these
examples show that the decision below is especially important
to correct because its effects stretch far beyond Hammer and
similarly-situated inmates, to affect the public’s understanding
of the penal system.
3

 

 

6

All of this is possible because reporters and authors were able to interview inmates without government censorship. But the decision below permitted blanket restrictions on the speech of death row
inmates. And the court’s reasoning is so broad that it
would seem to give prison officials the discretion to
curtail any inmate’s speech whenever a court can
“imagine” a legitimate reason for the restrictions (See
App. 5a).4
A. Inmate interviews expose abuse and spur
prison reform.
Communications between prisoners and the
press, including discussions about other inmates,
have long played a valuable role in exposing inhumane conditions and abuse in the country’s prisons
and jails.
For example, The Washington Post published a
Pulitzer Prize-winning investigative series on inmate
rape in 1982. The series told a litany of stories about
men detained at a Maryland jail — many later acquitted — whose reports of rape were ignored by corrections officials. The piece included the story of
                                                            
The First Amendment rights of pretrial detainees and those of
post-conviction prisoners are analytically distinct. See, e.g., Procunier v. Navarette, 434 U.S. 555, 564 & n.11 (1978). Amici discuss examples involving both because the public interest in
speaking with both detainees and prisoners, in both the state
and federal systems, is similar. Indeed, there is a stronger interest in interviewing death row inmates, who presumably will
never return to society, than those held at facilities former inmates of which can be interviewed after they leave.
4

 

 

7

Ronald Fridge, an 18-year-old waiter who was briefly
jailed after a verbal dispute with his landlady over
rent. Fridge told reporters that another inmate raped
and assaulted him while he was awaiting trial. He
said he complained to corrections officials after the
first rape but was left in a cell with the aggressor for
two days, during which time he was raped “again
and again.” Another inmate interviewed by a reporter said he helped the alleged aggressor rape
Fridge.5 The story provided a unique window into a
dysfunctional jail, and it had two important effects:
three months after the story ran, the paper reported
that conditions had improved at the detention facility
due to new safety measures enacted in response to
the exposé.6 And the next month, a grand jury indicted seven men implicated in sexual assaults uncovered in the inmate interviews.7
Nor is this example unique. In 1994, the Massachusetts Department of Corrections launched an effort to curb prison rape after a Boston Globe series
focused on inmates who told reporters they were
sexually assaulted — and, in at least one case, in                                                            
Loretta Tofani, Terror Behind Bars: Most Victims of the Sexual Attacks are Legally Innocent, THE WASHINGTON POST, Sept.
26, 1982, at A1.
5

Loretta Tofani, Improved Conditions Reduce Assaults in P.G.
Jail, THE WASHINGTON POST, Dec. 31, 1982, at B1.
6

Loretta Tofani and Tom Vesey, Seven Are Indicted in Sexual
Assaults at Prince George’s Jail, THE WASHINGTON POST, Jan.
14, 1983, at A1.

7

 

 

8

fected with HIV — behind bars.8 Five months later,
the state prosecuted its first-ever prison rape case.9
In another case, a Florida death-row inmate alerted
a newspaper about beatings that later resulted in an
inmate’s death, imploring that someone “get the Feds
in here … to stop this before someone gets killed.”10
B. Inmate interviews provide unique insight
into prison conditions.
Aside from coverage of rape and other violence
against inmates, media interviews have exposed unhealthy conditions and prisons’ failures to provide
medical assistance to inmates. For example, a 2007
Boston Globe series on prison conditions for the mentally ill incarcerated in Massachusetts examined the
soaring number of inmate suicides in the state dur                                                            
Charles M. Sennott, Prison system enacts reforms to stop inmate rape, THE BOSTON GLOBE, Nov. 9, 1994, at B1; see Charles
M. Sennott, Prison’s hidden horror: Rape Behind Bars, THE
BOSTON GLOBE, May 1, 1994, at B1, Charles M. Sennott, AIDS
adds a fatal factor to prison assault: Rape Behind Bars, THE
BOSTON GLOBE, May 2, 1994, at B1.
8

Charles M. Sennott, Prison system enacts reforms to stop inmate rape, THE BOSTON GLOBE, Nov. 9, 1994, at B1.
9

Meg Laughlin, Inmate Letter Warned of Beatings, THE MIAMI
HERALD, July 27, 1999, at A1; see also Beth Kassab, 5 Guards
Go Free in Killing: Charges will be dropped in the fatal beating
death of death-row inmate Frank Valdes, ORLANDO SENTINEL,
May 11, 2002, at A1; Noah Bierman and John Pacenti, State
drops effort to try guards for inmate’s death, THE PALM BEACH
POST, May 11, 2002, at 1A; Rich Rucker, Prisons work to cut
inmate abuse, FLORIDA TIMES-UNION, Nov. 17, 2001, at B1.
10

 

 

9

ing a two-year period.11 A special investigative team
interviewed a 28-year-old mentally-ill inmate who
twice had attempted suicide and described the horrors of solitary confinement that had driven him to
the brink and other inmates over the edge.12 In the
wake of the series, state lawmakers called for swift
action to change the state’s treatment of the mentally ill behind bars.13
Similarly, the Chicago Tribune profiled a former
death row inmate who developed paranoid schizophrenia while on death row.14 A 2008 book for young
adult readers featured interviews with death row
inmates sentenced for crimes they committed when
they, too, were teenagers.15 And the Denver Westword News’s correspondence with inmate Troy
Anderson prompted a news report that the inmate
had been seeking evaluations for medications for two
                                                            
Beth Healy, Breakdown: The Prison Suicide Crisis; A system
strains, and inmates die, THE BOSTON GLOBE, Dec. 9, 2007, at
A1.

11

Jonathan Saltzman and Thomas Farragher, Breakdown: The
Prison Suicide Crisis; Guards, inmates a volatile dynamic, THE
BOSTON GLOBE, Dec. 11, 2007, at A1.
12

Michael Rezendes and Thomas Farragher, Patrick aide
spurns prison policy change; Rejects call to ban solitary confinement for the mentally ill, THE BOSTON GLOBE, Dec. 12, 2007,
at B1.

13

Barbara Brotman, Hard Time: Killer Says Prison Caused the
Mental Illness That’s Now Keeping Him There, CHICAGO
TRIBUNE, Dec. 1, 1991, at 1.
14

Susan Kuklin, NO CHOIRBOY: MURDER, VIOLENCE, AND
TEENAGERS ON DEATH ROW (2008).
15

 

 

10

years and was told he would not be released from
solitary confinement without them. Days after the
alternative weekly newspaper inquired about the delay, Anderson saw a psychiatrist.16
Journalists’ communications with immigrants detained in federal facilities also have helped shed light
on the post-Sept. 11, 2001 operation of immigration
detention centers. This included, for example, stories
about an Ivory Coast pilot held as a material witness
in a hijacking probe for four months before being interviewed,17 and a U.S. resident fighting deportation
who reported being unable to get proper care for tumors and other medical problems in an Arizona
prison.18
C. Inmate interviews help citizens monitor
how their tax dollars are spent.
Inmate health and safety aside, prisons and jails
represent a massive public investment. Interviews
                                                            
Alan Prendergast, Head Games, DENVER WESTWORD NEWS,
September 21, 2006, available at www.westword.com/2006-0921/news/head-games.
16

See Amy Goldstein, ‘I Want to Go Home’; Detainee Tony Oulai
Awaits End of 4-Month Legal Limbo, THE WASHINGTON POST,
Jan. 26, 2002, at A1; Amy Goldstein, A Sept. 11 Detainee’s Long
Path to Release; After Final Glitch, Ivory Coast Native is Home,
THE WASHINGTON POST, Nov. 12, 2002, at A3.
17

See Amy Goldstein and Dana Priest, In Custody, In Pain; Beset by Medical Problems as She Fights Deportation, a U.S. Resident Struggles to Get the Treatment She Needs, THE
WASHINGTON POST, May 12, 2008, at A1.
18

 

 

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with inmates provide one way for the public to monitor how its money is being spent.
Today, only Medicaid costs are growing faster
than criminal corrections spending, which outpaces
state budget growth in education, transportation,
and public assistance.19 Correctional facilities cost
states $47 billion in 2008, according to a Pew Center
of the States Report that revealed that one in thirtyone adults, or 7.3 million Americans, are either in
prison, on parole, or on probation. The Pew report
found that fifteen states now spend more than $1 billion of their annual budgets on their correctional systems. Michigan, for example, dedicates 22% of its
general fund spending to its correctional systems.
Press interviews with inmates have long helped
the public keep an eye on these essential, but very
expensive, public institutions. In North Carolina, for
example, journalists who interviewed an inmate discovered that a prison doctor who was earning
$110,000 for full-time employment actually spent
less than two hours a day in the facility. After the
report, a class action suit against the doctor emerged,
the doctor resigned, and officials stepped up plans to
expand medical facilities for prisoners.20

                                                            
One in 31: The Long Reach of American Corrections, THE PEW
CENTER ON THE STATES, March 2, 2009, available at
http://www.pewcenteronthestates.org/report_detail.aspx?id=493
82.
19

Gloria Romero, Access Needed to Report on Prison Conditions,
THE DAILY NEWS OF LOS ANGELES, April 29, 2004, at N17.
20

 

 

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II. The court below erred in approving a policy
that allows no method of uncensored
communication with the press.
Despite the value of prisoner interviews, the SCU
Media Policy limits “all avenues of communication”
between prisoners and the press, providing what
Judge Wood called “an all-too-effective way to prevent the public from ever learning about” prisoner
abuse or unhealthy conditions. (App. 28a). The Policy, by forbidding one inmate from discussing another inmate under any circumstances and regardless of the medium, eviscerates prisoners’ First
Amendment rights and undermines the public’s access to a unique and important source of information
about prisons.
The First Amendment demands more. This Court
repeatedly has suggested that abridgements of inmates’ First Amendment rights are tolerated if, and
only if, alternative means of communication with the
press and other members of the public are available.
The lack of any free channel of communication between journalists and inmates is contrary to established jurisprudence regarding prisoners’ rights and
this Court’s recognition that the conditions in U.S.
prisons are a matter that is both newsworthy and of
great public importance. See Pell v. Procunier, 417
U.S. 817, 830 n.7 (1974).
A. Previous limits on inmate speech allowed
some means of uncensored
communication.
Prisoners retain constitutional rights even while
incarcerated, including free speech rights and the
 

 

13

First Amendment right to petition the government
for a redress of grievances. Turner, 482 U.S. at 84
(citing Johnson v. Avery, 393 U.S. 483 (1969)). These
rights may be regulated as a consequence of incarceration, but only if “there are alternative means of
exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90.
The Court explained in Procunier v. Martinez that
the interest of “prisoners and their correspondents in
uncensored communication … grounded as it is in
the First Amendment, is ... protected from arbitrary
governmental invasion.” 416 U.S. 396, 417-18 (1974),
overruled in part by Thornburgh v. Abbott, 490 U.S.
401 (1989) (citations omitted). In addition to the
speech interests at stake, contact with the press is
one essential method of petitioning the government.
Indeed, media coverage not only describes the criminal legal process, but also “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U.S.
333, 350 (1966); see also Nolan v. Fitzpatrick, 451
F.2d 545, 547 (1st Cir. 1971) (recognizing a constitutional “right to send letters to the press concerning
prison matters” and adding that “[t]he argument
that the prisoner has the right to communicate his
grievances to the press and, through the press, to the
public is thus buttressed by the invisibility of prisons
to the press and the public: the prisoners’ right to
speak is enhanced by the right of the public to hear”).
When this Court has approved restrictions on
prisoner speech, it has done so in part because the
restrictions were narrow enough to allow alternative,
unfettered means of expression. Thus, in Saxbe, the
 

 

14

Court allowed a policy barring face-to-face communication in part because the policy allowed unlimited,
uncensored outgoing correspondence with journalists, and prison authorities were required to “give all
possible assistance” to press representatives “in providing background and a specific report” concerning
any inmate complaints. Saxbe v. Washington Post
Co., 417 U.S. 847-48 (1974). In Pell, the Court noted
that prison officials should be accorded deference
with regard to regulating “the entry of people into
the prisons for face-to-face communication with inmates.” Pell, 417 U.S. at 826. But this was only the
case “[s]o long as reasonable and effective means of
communication remain open and no discrimination
in terms of content is involved” in the policy. Id.
Thus, the Pell Court approved restrictions on inperson interviews in part because “it is clear that the
medium of written correspondence affords inmates
an open and substantially unimpeded channel for
communication with persons outside the prison, including representatives of the news media.” Id. at
824. Both cases thus held that “[d]enying media access to conduct face-to-face interviews with inmates
is constitutional as long as alternative means for
communicating with the media are available.” Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (emphasis added).
B. The Media Policy, as enforced, allows
death row prisoners no unfettered communication with the press.
The en banc majority recognized this Court’s admonition that regulations on prisoner speech should
include some manner of unfettered communication
with the press. “A system of rules that permitted
 

 

15

prison administrators to conceal beatings or starvation of prisoners, violations of statutes and regulations, and other misconduct would be intolerable,” it
conceded. (App. 13a). “The Court said as much in Pell
and [Saxbe]. It was important to both decisions that
all prisoners could correspond freely with reporters,
even though face-to-face interviews were impossible.”
(Id.).
The court below nevertheless approved the SCU
Media Policy’s interview restriction, in part because
it assumed that written correspondence provided an
inmate with a reasonable alternative means of communication. “As far as we can tell,” the en banc majority found, the prohibition on speaking about other
inmates “applies to interviews (in person or by telephone) but not to correspondence.” (App. 13a). The
majority assumed that “an inmate’s letters to reporters are not subject to inspection or censorship” and
concluded that if “another inmate is beaten and unable to talk, Hammer remains free to send a letter
informing a reporter about that event. Pell and
[Saxbe] held that free correspondence supplies the
needed channel of communication.” (App. 2a, 14a15a).
But the record reflects a different reality, Judge
Rovner noted, in which “an inmate could be disciplined for informing the media — whether on the
phone or by letter — that another inmate is being
abused by a guard.” (App. 20a). Contrary to the majority’s assumptions, the government conceded that
“death-row inmates are not allowed — through any
method of communication — to discuss other inmates
with members of the media.” (App. 19a-20a). It also
conceded that “all mail sent by inmates at the Spe 

 

16

cial Confinement Unit must be given to prison officials unsealed for inspection before it is mailed.”
(App. 20a). And “[w]hen asked what would be the
consequence to an inmate who sends a letter discussing another inmate, counsel for the government had
no answer.” (Id.). Indeed, the record reveals that
Warden Harley Lappin told Hammer that: “You are
hereby ordered not to provide any information concerning other inmates during news media interviews,
social calls, or correspondence with the media.” (App.
25a). At one point, prison officials even “disciplined
Hammer for providing information about a fellow
death row inmate to a reporter.” (App. 33a).
Hammer was not permitted discovery in order to
fully develop the record — rather than respond to his
discovery requests, the government sought, and received, summary judgment in its favor. (App. 36a); cf.
Prison Legal News v. Cook, 238 F.3d 1145, 1150 (9th
Cir. 2001) (“When the inmate presents sufficient …
evidence that refutes a common-sense connection between a legitimate objective and a prison regulation,
… the state must present enough counter-evidence to
show that the connection is not so remote as to render the policy arbitrary or irrational”) (internal citations omitted). On the anemic and fuzzy record that
did exist, Judge Wood noted, the court was left to
guess “whether there is any satisfactory alternative
for inmates at the Special Confinement Unit to give
the media any information that involves other inmates.” (App. 20a). The majority simply assumed
that, “[a]s far as we can tell,” inmates were able to
send uncensored mail to journalists. (App. 13a).
And this is no small assumption. “Without the
linchpin provided by its assumption that correspon 

 

17

dence is free,” Judge Wood argued, “the majority’s
rationale collapses.” (App. 20a). At the very least,
Hammer deserves the opportunity to prove his claim
that the Policy, as enforced, left him with no means
of unfettered communication with the media.
III. Public oversight of prisons will suffer if
this decision, allowing the content-based
suppression of speech, stands.
The primary test of whether a regulation on inmate speech is permissible is whether there is a
“valid, rational connection between the prison regulation and the legitimate governmental interest put
forward to justify it.” Turner, 482 U.S. at 89 (internal
quotation omitted).
To meet this test, “the governmental objective
must be a legitimate and neutral one. We have found
it important to inquire whether prison regulations
restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.” Id. at 89-90 (citing Pell, 417
U.S. at 828; Bell v. Wolfish, 441 U.S. 520, 551
(1979)). Moreover, “a regulation cannot be sustained
where the logical connection between the regulation
and the asserted goal is so remote as to render the
policy arbitrary or irrational.” Turner, 482 U.S. at
89-90. These considerations are “[f]irst and foremost”
among the Turner factors — if “the connection between the regulation and the asserted goal is ‘arbitrary or irrational,’ then the regulation fails, irrespective of whether the other factors tilt in its favor.”
Shaw v. Murphy, 532 U.S. 223, 229-30 (2001).

 

 

18

Other circuits have interpreted Turner as requiring that “prison officials actually had, not just could
have had, a legitimate reason for burdening protected activity.” Salahuddin v. Goord, 467 F.3d 263,
277 (2nd Cir. 2006) (emphasis added); see also Quinn
v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (“Prison officials are not entitled to the deference described in
Turner … if their actions are not actually motivated
by legitimate penological interests at the time they
act.”) (emphasis added). Because “deference does not
mean abdication,” Turner requires authorities to
“first identify the specific penological interests involved and then demonstrate both that those specific
interests are the actual bases for their policies and
that the policies are reasonably related to the furtherance of the identified interests. An evidentiary
showing is required as to each point.” Walker v.
Sumner, 917 F.2d 382, 385-87 (9th Cir. 1990); see also Swift v. Lewis, 901 F.2d 730, 731 (9th Cir. 1990),
superseded by statute on other grounds (reversing
summary judgment grant where officials failed to
show “that the interests they have asserted are the
actual bases for their grooming policy”); Kimberlin v.
Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999) (“even if
appellants provide an objectively valid reason for
their actions in this case, the District Court must
still inquire into whether there is a disputed issue of
fact as to whether appellants were actually motivated by an illegitimate purpose”).
Thus, Turner upheld a restriction on correspondence because there was testimony that the restriction “was promulgated primarily for security reasons” and “[p]rison officials testified that mail between institutions can be used to communicate escape plans and to arrange assaults and other violent
 

 

19

acts.” Turner, 482 U.S. at 91. Conversely, the Third
Circuit ordered a district court to enjoin a prison policy because prison authorities investigated an inmate
“under public pressure to do so, and because of the
content of [his] writing.” Abu-Jamal v. Price, 154
F.3d 128, 134 (3rd Cir. 1998); see also Kimberlin, 199
F.3d at 503 (citing lower court finding that “no reasonable prison official could believe that interfering
with an inmate’s access to the press because of the
content of the inmate’s speech could be lawful”).
The court below rejected this reading of Turner,
finding it irrelevant whether the government’s asserted interest was pretextual and rejecting the idea
that “one bad motive would spoil a rule that is adequately supported by good reasons.” (App. 10a). “The
Supreme Court did not search for ‘pretext’ in Turner;
it asked instead whether a rule is rationally related
to a legitimate goal. That’s an objective inquiry,” the
court ruled. (App. 10a). This reading eviscerates
Turner. It also creates a split with the Second, Third,
Eighth Ninth, and District of Columbia circuits with
regard to an important federal question. See Sup. Ct.
R. 10(a).
A. The record shows the rules were an attempt to keep the viewpoints of death
row inmates from the public.
There is no evidence in the record, beyond posthoc assertions, suggesting that the SCU Media Policy
was motivated by any penological interest. To the
contrary — the record shows that the policy was motivated by political concerns over suppressing particular viewpoints rather than a concern for safety.

 

 

20

Federal regulations have long allowed inmates to
participate in face-to-face press interviews, “not subject to auditory supervision,” unless the warden determines that a specific interview would “endanger
the health or safety of the interviewer, or would
probably cause serious unrest or disturb the good order of the institution,” or other specific criteria are
met. 28 C.F.R. § 540.63. The SCU Media Policy creates an exception for death row inmates, flatly prohibiting in-person interviews and barring any discussion of other inmates.21
The Policy was created just after Timothy
McVeigh appeared on the television news program
60 Minutes. North Dakota Senator Byron L. Dorgan
blasted prison officials for allowing McVeigh to speak
with a television news crew. “The American people
have a right to expect that the incarceration of a convicted killer will not only remove him physically from
society,” he said, “but will also prevent him from further intrusion in our lives through television interviews and from using those forums to advance his
agenda of violence.” (App. 8a). Dorgan’s letter demanded that the Bureau of Prisons revise its regulations and curtail prisoner access to the media so as
not to further “dishonor” crime victims. (7th Cir. JA
at 175). Of course, the letter reveals Dorgan’s personal distaste for the content of what an inmate said,
                                                            
As Hammer notes, singling out male death row inmates also
creates equal protection concerns. See Cert. Pet. 13 (“no other
reported decision has ever upheld the constitutionality of a permanent restriction on the First Amendment rights of a subclass
of prisoners, particularly a subclass identified solely based on
gender and sentence”) (emphasis omitted).
21

 

 

21

rather than any concern that the prisoners and employees of the SCU were being put at risk by
McVeigh’s comments.
Dorgan’s viewpoint-based motivation was echoed
by Attorney General John Ashcroft during a press
conference announcing the new SCU media policy in
April 2001. Standing with Bureau of Prisons Director
Kathleen Hawk Sawyer, Ashcroft invoked his distaste for McVeigh’s appearance on 60 Minutes to justify the new ban. “As an American who cares about
our culture, I want to restrict a mass murderer’s access to the public podium,” he said. (App. 90a). “On
an issue of particular importance to me as attorney
general of the United States, I do not want anyone to
be able to purchase access to the podium of America
with the blood of 168 innocent victims.” (Id.).
For these reasons, Ashcroft said, he was ordering
that “[m]edia access to special confinement unit inmates will be limited to each inmate’s ordinary allotment of telephone time.” (Id.) Warden Harley
Lappin formalized the ban with Institution Supplement THA-1480.05A just three days after the Attorney General’s statement. (App. 9a). Ashcroft’s statement made clear that his preferences about viewpoints suitable for American culture motivated the
interview ban. This frank admission belies any notion that security threats, either real or potential,
were at the heart of the ban.
Amici recognize the discretion this Court has
granted to prison administrators to curtail in-person
interviews with inmates when legitimate interests
are at stake and alternatives for communication are
present. See Pell, 417 U.S. at 822; Saxbe, 417 U.S. at
 

 

22

847. Amici respectfully suggest that Pell and Saxbe
underestimated the importance of in-person prisoner
interviews.22 But there is no need to revisit Pell and
Saxbe in order to clarify that, where such restrictions
are put in place, they must legitimately be motivated
by the security concerns present in those cases. The
Constitution does not permit the government to cloak
content-based restrictions on prisoner speech in posthoc claims of security concerns. Nor does it permit
regulations, like these, aimed at suppressing objectionable points of view. See, e.g., Martinez, 416 U.S.
at 415 (invalidating regulations that “authorized, inter alia, censorship of statements that ‘unduly complain’ or ‘magnify grievances,’ expression of ‘inflammatory political, racial, religious or other views,’ and
matter deemed ‘defamatory’ or ‘otherwise inappropriate’”).
B. The government failed to justify its “jail
celebrity” rationale in this context.
The court below found that the SCU Media Policy
is justified by security concerns unique to death row
inmates. (App. 57a). But these post-hoc assertions
are not sufficient even under the deferential scrutiny
articulated in Turner.
                                                            
There is no wholly adequate alternative to the in-person interview. See, e.g., Saxbe, 417 U.S. at 854 (Powell, J., dissenting)
(citing expert testimony and adding that “[o]nly in face-to-face
discussion can a reporter put a question to an inmate and respond to his answer with an immediate follow-up question”).
This is particularly true for broadcasters, who rely on images
and recordings to tell their stories. See Houchins v. KQED, 438
U.S. 1, 17 (1978) (Stewart, J., concurring in the judgment).
22

 

 

23

The court defended singling out death row prisoners based on a concern they will become “jail celebrities” if they are allowed face-to-face interviews with
the press. It is common for prison officials to make
similar claims in support of restrictions upon media
access to inmates. See, e.g., Pell, 417 at 831-832. The
Saxbe Court thus found that “inmates who are conspicuously publicized because of their repeated contacts with the press tend to become the source of
substantial disciplinary problems that can engulf a
large portion of the population at a prison.” 417 U.S.
at 848-849. The concern under this theory is that
media interviews with this type of inmate “increase
their status and influence and thus enhance their
ability to persuade other prisoners to engage in disruptive behavior.” Id. at 866 (Powell, J., dissenting).
The concerns presented in Pell and Saxbe may be
reasonable in their specific factual settings, but the
government produced no evidence that they apply
with any special force to death row prisoners. As
Judge Rovner noted, “[i]t is unclear why speaking inperson with a journalist would give an unknown
death-row inmate more influence over other prisoners than would, for example, allowing Martha Stewart or George Ryan to give face-to-face interviews
during their incarceration, which they would have
been or are free to do under the Bureau’s policies.”
(App. 22a).
If anything, the day-to-day conditions of life on
death row make it far less likely that an inmate
could wreak havoc with his or her perceived status as
a celebrity. The isolated lives of Hammer and his fellow SCU inmates hardly present an opportunity for
Hammer to use any prestige or notoriety he may re 

 

24

ceive from an in-person media interview to encourage
disruptive behavior in others. Life in the SCU is
tightly regulated. There are three classifications for
inmates, only one of which allows any contact between inmates. (7th Cir. JA at 200). Even that allowed contact is highly regulated — only four inmates may be placed in the same recreation enclosure. (Id. at 206). If a prisoner needs to leave the
SCU for any reason, he must be “restrained in front
with full restraints, handcuffs, black box, martin
chain and leg irons.” (Id. at 200). During such an outing, the prisoner must be escorted by no fewer than
three guards. (Id.) And, regardless of their classification, inmates are not allowed contact social visits.
(Id. at 208).
At the very least, Hammer deserves the opportunity to take discovery on the sincerity and reasonableness of the asserted penological interest. But the
government refused to answer his pro se discovery
requests, and the court below nevertheless affirmed
the defendants’ motion for summary judgment and
dismissed Hammer’s claims. (App. 36a).
CONCLUSION
The government has imposed a broad ban on
prisoner interviews, motivated by a professed desire
to gag unwelcome content and disfavored viewpoints.
Such a broad and ill-conceived ban infringes on
Hammer’s rights, but the effects go far beyond the
harm to any individual prisoner.
The SCU Media Policy broadly suppresses valuable speech, and the record suggests it does so by design. As the panel decision below noted, “it can be an
 

25

 

easy thing for an inmate to allege that prison officials are lying about the rationale behind a prison
restriction.” (App. 45a). But where, as here, an inmate “back[s] up his allegations with admissible evidence from which a reasonable jury could infer that
an illegitimate reason lies behind the interview ban,”
he deserves the opportunity to prove his case. (Id.).
Amici respectfully request that the Court accept
review of the decision below.
Respectfully submitted,
Lucy A. Dalglish
Counsel of Record
Gregg P. Leslie
John Rory Eastburg
The Reporters Committee
for Freedom of the Press
1101 Wilson Blvd., Ste. 1100
Arlington, VA 22209-2211
(703) 807-2100
November 25, 2009
(Additional attorneys listed in Appendix B.)

 

A-1
APPENDIX A
Descriptions of amici:
The Reporters Committee for Freedom of the
Press is a voluntary, unincorporated association of
reporters and editors that works to defend the First
Amendment rights and freedom of information interests of the news media. The Reporters Committee
has provided representation, guidance and research
in First Amendment and Freedom of Information Act
litigation since 1970.
Advance Publications, Inc., directly and through
its subsidiaries, publishes over 20 magazines with
nationwide circulation, daily newspapers in over 20
cities, and weekly business journals in over 40 cities
throughout the United States. It also owns, directly
or through its subsidiaries, many internet sites and
has interests in cable systems serving over 2.3 million subscribers.
With some 600 members, ASNE is an organization that includes directing editors of daily newspapers throughout the Americas. ASNE changed its
name in April 2009 to the American Society of News
Editors and approved broadening its membership to
editors of online news providers and academic leaders. Founded in 1922, as the American Society of
Newspaper Editors, ASNE is active in a number of
areas of interest to top editors with priorities on improving freedom of information, diversity, readership
and credibility of newspapers.
The Association of American Publishers, Inc.
(“AAP”) is the national trade association of the U.S.
book publishing industry. AAP’s members include
most of the major commercial book publishers in the

 

A-2
United States, as well as smaller and non-profit publishers, university presses, and scholarly societies.
AAP members publish hardcover and paperback
books in every field, educational materials for the
elementary, secondary, postsecondary, and professional markets, scholarly journals, computer software, and electronic products and services. The Association represents an industry whose very existence depends upon the free exercise of rights guaranteed by the First Amendment.
The Citizen Media Law Project ("CMLP") provides legal assistance, education, and resources for
individuals and organizations involved in online and
citizen media. CMLP is jointly affiliated with Harvard University’s Berkman Center for Internet & Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development, and the Center for Citizen Media, an initiative to enhance and expand grassroots media. CMLP
is an unincorporated association hosted at Harvard
Law School, a non-profit educational institution.
CMLP has previously appeared as an amicus on legal
issues of importance to the media, including in Bank
Julius Baer & Co. v. Wikileaks.org, No. 08CV824
(N.D. Cal. Feb. 26, 2008), Hatfill v. Mukasey, No.085049 (D.C. Cir. March 28, 2008), Maxon v. Ottawa
Publishing Co., No. 2008-MR-125 (Ill. App. Ct. Mar.
24, 2009), The Mortgage Specialists, Inc. v. ImplodeExplode Heavy Industries, Inc., No. 2009-0262 (N.H.
June 30, 2009), and United States v. Stevens, No. 08769 (S. Ct. July 24, 2009).
Community Newspaper Holdings, Inc. (“CNHI”),
through its subsidiaries, owns newspapers, television
stations, Web sites and niche publications that serve
more than 150 communities throughout the United
 

A-3
States. Its titles include The Tribune Star, which is
nearby the United States Penitentiary in Terre
Haute, Indiana.
Cox Media Group, Inc. (“CMG”) is a Delaware
privately-held corporation. CMG’s direct and indirect
subsidiaries and affiliates include companies that
own and operate a variety of news media, including
television stations, radio stations, newspapers and
websites in multiple markets throughout the United
States.
The E.W. Scripps Company is a diverse, 130-yearold media enterprise with interests in television stations, newspapers, local news and information Web
sites, and licensing and syndication. The company’s
portfolio of locally focused media properties includes:
10 TV stations (six ABC affiliates, three NBC affiliates and one independent); daily and community
newspapers in 13 markets and the Washington,
D.C.-based Scripps Media Center, home of the
Scripps Howard News Service; and United Media,
the licensor and syndicator of Peanuts, Dilbert and
approximately 150 other features and comics.
The First Amendment Coalition is a nonprofit
public interest organization dedicated to defending
free speech, free press, and open-government rights
in order to make government, at all levels, more accountable to the people. The Coalition’s mission assumes that government transparency and an informed electorate are essential to a self-governing
democracy. To that end, we resist excessive government secrecy (while recognizing the need to protect
legitimate state secrets) and censorship of all kinds.
The Foundation for National Progress is a nonprofit, public benefit corporation and the publisher of
 

A-4
Mother Jones magazine in print and online. Mother
Jones has been involved in investigative journalism
for more than thirty years, during which time it has
won numerous awards, including five National
Magazine Awards, most recently for General Excellence in 2001 and 2008. With a paid circulation of
230,000, Mother Jones magazine is the most widely
read avowedly progressive publication in the United
States. Regardless of the political inclinations of the
administration in power, however, Mother Jones has
relentlessly pursued investigations of the nation’s
most powerful and socially significant institutions,
including the nation’s prison system. Access to inmates is an indispensible prerequisite for meaningful
investigation of and reporting on the prison system
in particular and on the justice system as a whole. It
is already extremely difficult to obtain such access,
and granting penal authorities unfettered discretion
to determine whether, when, and what inmates can
communicate to the press will make it virtually impossible.
Gannett Co., Inc. (“Gannett”) is an international
news and information company that publishes 84
daily newspapers in the United States, including
USA TODAY and The Indianapolis Star, and nearly
850 non-daily publications, including USA Weekend,
a weekly newspaper magazine. Gannett also owns 23
television stations, and over 100 U.S. websites that
are integrated with its publishing and broadcast operations.
The Hoosier State Press Association (“HSPA”) is a
corporate association whose members include 176
Indiana newspapers. The primary focus of the HSPA
is to safeguard and advance the newspaper industry

 

A-5
in the State of Indiana. The corporation is nonpolitical and nonsectarian.
The Hoosier State Press Association Foundation
is a non-profit entity whose members include 176
Indiana newspapers and other parties interested in
the Foundation’s mission. The purpose of the Foundation is to enhance the ability of Indiana newspapers to fully educate and inform the public, and to
defend the principles of the First Amendment to the
United States Constitution.
The Human Rights Defense Center (HRDC) is a
non-profit, charitable corporation that publishes a
nationally distributed monthly journal called Prison
Legal News. Since 1990, Prison Legal News has reported on news, recent court decisions, and other developments relating to the civil and human rights of
prisoners in the United States and abroad. PLN has
the most comprehensive coverage of detention facility
litigation of any publication. In addition to reporting
on the human and civil rights of prisoners, PLN also
reports on the rights of crime victims, prison and jail
employees, and prison and jail visitors. PLN has approximately 7,000 subscribers in all fifty states and
abroad and eight times as many readers. Approximately sixty-five percent of PLN subscribers are
state and federal prisoners. The remainder are attorneys, judges, advocates, journalists, academics
and
concerned
citizens.
PLN’s
website,
www.prisonlegalnews.org receives approximately
100,000 visitors per month. In addition to publishing
Prison Legal News, PLN has regularly filed litigation
under the First Amendment in federal courts nationwide, challenging prison officials who censor
PLN.

 

A-6
MediaNews Group is one of the largest newspaper
companies in the United States. It operates or has an
ownership interest in 54 daily newspapers in 11
states, with combined daily and Sunday circulation
of approximately 2.4 million and 2.7 million, respectively. Each of its newspapers maintains a Web site
focused on local news content, hosted by MediaNews
Group Interactive. MediaNews Group also owns a
television station in Anchorage, Alaska, and operates
radio stations in Texas. The MediaNews Group
newspapers and broadcast stations report on a vast
variety of subjects, but crime, the punishment of
criminals, the prison system, and the judicial system
as a whole are the subject of constant investigation
and reporting. This reporting includes, among other
things, extensive coverage of the ongoing controversy
regarding the methodology used for executions by lethal injection. Experience has taught the press that
authorities in charge of penal institutions cannot
necessarily be trusted to provide complete or accurate information about the conditions within them,
and even the most forthright cannot provide the perspective of their inmates. If restrictions on inmates’
ability to communicate can be imposed at the whim
of the authorities, it is predictable – indeed inevitable – that information critical to the public’s assessment of the efficacy and propriety of the conduct of
those charged with operating the nation’s prisons
will be suppressed, shielding from scrutiny and accountability those who need it most.
National
Press
Photographers
Association
(NPPA) is a non-profit organization dedicated to the
advancement of photojournalism in its creation, editing and distribution. NPPA’s almost 9,000 members
include television and still photographers, editors,

 

A-7
students and representatives of businesses that
serve the photojournalism industry. Since its founding in 1946, the NPPA has vigorously promoted freedom of the press in all its forms, especially as that
freedom relates to photojournalism. Given NPPA’s
over sixty year history in photojournalism, it is wellpoised to address the importance of public access to
prison issues and to explain how today, such access
greatly depends on the presence of audio-visual coverage, which by its very nature necessitates inperson interviews.
The New York Times Company is the publisher of
The New York Times, the International Herald Tribune, The Boston Globe, and 15 other daily newspapers. It also owns and operates WQXR-FM and more
than 50 websites, including nytimes.com, Boston.com
and About.com.
Newspaper Association of America (NAA) is a
nonprofit organization representing the interests of
more than 2,000 newspapers in the United States
and Canada. NAA members account for nearly 90
percent of the daily newspaper circulation in the
United States and a wide range of non-daily newspapers. One of NAA’s key strategic priorities is to advance newspapers’ First Amendment interests, including the ability to gather and report the news.
The Newspaper Guild – CWA is a labor organization representing more than 30,000 employees of
newspapers, newsmagazines, news services and related media enterprises. Guild representation comprises, in the main, the advertising, business, circulation, editorial, maintenance and related departments of these media outlets. The Newspaper Guild
is a sector of the Communications Workers of Amer-

 

A-8
ica. As America’s largest communications and media
union, representing over 700,000 men and women in
both private and public sectors, CWA issues no stock
and has no parent corporations.
The Radio Television Digital News Association is
the world’s largest and only professional organization
devoted exclusively to electronic journalism. RTDNA
is made up of news directors, news associates, educators and students in radio, television, cable and electronic media in more than 30 countries. RTDNA is
committed to encouraging excellence in the electronic
journalism industry and upholding First Amendment
freedoms.
The Society of Professional Journalists is dedicated to improving and protecting journalism. It is
the nation’s largest and most broad-based journalism
organization, dedicated to encouraging the free practice of journalism and stimulating high standards of
ethical behavior. Founded in 1909 as Sigma Delta
Chi, SPJ promotes the free flow of information vital
to a well-informed citizenry; works to inspire and
educate the next generation of journalists; and protects First Amendment guarantees of freedom of
speech and press.
Stephens Media LLC is a nationwide newspaper
publisher whose operations include the Las Vegas
Review-Journal, the largest newspaper in Nevada.
Stephens Media also publishes daily newspapers
from North Carolina to Hawaii.
Tribune Company operates businesses in publishing, broadcasting and interactive, including eight
daily newspapers, such as the Los Angeles Times,
Chicago Tribune and Baltimore Sun, 23 television
stations, WGN America and WGN Radio. Popular
 

A-9
websites add breadth and depth to the news coverage
provided by these organizations.
The Washington Post is a leading newspaper with
nationwide daily circulation of over 647,000 and a
Sunday circulation of over 878,000..

 

A-10
APPENDIX B
Additional counsel for amici:
Richard A. Bernstein
Neil M. Rosenhouse
Sabin, Bermant & Gould LLP
4 Times Square, 23rd floor
New York, New York 10036-6526
Counsel for Advance Publications, Inc.
Kevin M. Goldberg
Fletcher Heald & Hildreth
1300 North 17th Street, 11th Floor
Arlington, VA 22209
Counsel for The American Society
of News Editors
Jonathan Bloom
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Counsel for The Association of
American Publishers, Inc.
David Ardia
Samuel Bayard
Citizen Media Law Project
Berkman Center for Internet & Society
23 Everett Street, Second Floor
Cambridge, MA 02138
Matthew Gray
General Counsel
Community Newspaper Holdings, Inc.
3500 Colonnade Parkway, Suite 600
Birmingham, AL 35243

 

A-11
Andrew A. Merdek, Esq.
Vice President Legal Affairs, General
Counsel and Corporate Secretary
Cox Enterprises, Inc.
6205 Peachtree Dunwoody Road
Atlanta, GA 30328
David M. Giles
Deputy General Counsel
The E.W. Scripps Company
312 Walnut Street, Suite 2800
Cincinnati, OH 45202
Peter Scheer, Executive Director
First Amendment Coalition
534 4th St., Suite B
San Rafael, CA 94901
James Chadwick
Sheppard Mullin Richter & Hampton LLP
990 Marsh Road
Menlo Park, CA 94025-1949
Counsel for The Foundation for
National Progress
Barbara W. Wall
Vice President/
Senior Associate General Counsel
Gannett Co., Inc.
7950 Jones Branch Drive
McLean, VA 22107
Steve Key
Hoosier State Press Association
41 E. Washington St., Suite 301
Indianapolis, IN 46204
Counsel for the Hoosier State Press
Association and the Hoosier State

 

A-12
Press Association Foundation
Marshall W. Anstandig
Senior Vice President/General Counsel
MediaNews Group, Inc.
750 Ridder Park Drive
San Jose, CA 95190
Andy Huntington
General Counsel & Director, Labor Relations
San Jose Mercury News
750 Ridder Park Dr.
San Jose, CA 95190
Counsel for MediaNews Group, Inc.
Mickey H. Osterreicher, Esq.
69 Delaware Avenue
Suite 500
Buffalo, NY 14202
Counsel for National Press
Photographers Association
George Freeman
David McCraw
The New York Times Company
Legal Department
620 8th Ave.
New York, NY 10018
René P. Milam
Newspaper Association of America
4401 Wilson Blvd., Suite 900
Arlington, VA 22203
Barbara L. Camens
Barr & Camens
1025 Connecticut Avenue, NW, Suite 712
Washington, DC 20036
Counsel for The Newspaper Guild - CWA
 

A-13
Kathleen A. Kirby
Wiley Rein LLP
1776 K Street NW
Washington, DC 20006
Counsel for The Radio Television
Digital News Association
Bruce W. Sanford
Bruce D. Brown
Laurie A. Babinski
Baker & Hostetler LLP
1050 Connecticut Ave. NW, Suite 1100
Washington, DC 20036
Counsel for The Society of
Professional Journalists
Mark Hinueber
Vice President/General Counsel
Stephens Media LLC
Post Office Box 70
Las Vegas, NV 89125
Karen H. Flax
Charles J. Sennet
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Eric N. Lieberman, Esq.
James A. McLaughlin, Esq.
The Washington Post
1150 15th Street, N.W.
Washington, D.C. 20071



 

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