For Journalists Covering Prisons, the First Amendment is Little Help
by Jonathan Peters, Columbia Journalism Review
“Each prison is a fiefdom, and the warden is at the top of the feudal system.”
That’s how Gary Fields, who covered criminal justice for The Wall Street Journal, put it in 2012, discussing the government policies and practices that make it difficult for journalists to report on prisons, jails and other detention centers.
Press access to such facilities has been in the news because of the searing coverage of detention centers for migrant children. Officials have generally forbidden the journalists touring them from using recording equipment or conducting interviews with the children there.
It is tempting to see the limited access as an especially Trumpian trouble, of a piece with an administration that has labored since day one to delegitimize and marginalize the press. But the problem of press access to prisons and the like, as Fields signals, is a chronic one.
More than two million people are incarcerated in the United States, more than in any other country in the world, and tens of billions of taxpayer dollars are spent annually to keep them there. Rape occurs behind bars. Murder and assault, too. Solitary confinement can cause mental and physical suffering. It’s not uncommon for facility conditions to incubate disease. And the vast majority of prisoners will eventually re-enter their communities. What happens in penal institutions is a matter of public concern.
But it’s difficult for journalists to cover them. The First Amendment does a generally fine job of guaranteeing rights to communicate, but it’s a fickle source for access rights, which come from a complex system of statutes, regulations, the common law and a few problematic Supreme Court decisions.
In the 1972 case Branzburg v. Hayes, the Court held that the First Amendment did not entitle a reporter to refuse to testify before a grand jury about confidential sources, dealing a blow to the idea that the Constitution provided newsgathering rights. However, the majority opinion reasoned that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Unfortunately, the opinion didn’t articulate what it meant by “some protection.”
Just two years later, the Court heard companion cases regarding prison access: Pell v. Procunier and Saxbe v. Washington Post Co., in which prisoners and the press challenged regulations that prohibited interviews with specific prisoners. Pell involved state regulations, and Saxbe involved federal ones. The justices upheld them.
In Pell, the Court stressed that a prison’s security considerations justified some restrictions on access, as long as 1) the restrictions were content-neutral, and 2) reasonable alternative means of communication, by mail or through family/friend visitation, were available to the prisoners. The press had asserted the right to interview any prisoner willing to participate, in the absence of a finding that a given interview presented a real danger to a major government interest. But the Court swept aside that argument and held that the First Amendment did not confer upon the press a special right of access beyond that of the public, including the right – or lack thereof – to interview specific prisoners.
Similarly, in Saxbe, the Court found that press access to prisons is “generally limited” and that the federal regulations had not put the press in a worse position than the public. The Court also accepted the government’s argument that press attention for certain prisoners would wrap them in celebrity and create discipline problems within the prison.
Pell and Saxbe didn’t really address the extent to which prison officials could deny access to the general public, or what would happen if the public received meaningful access that was not meaningful for the press, in light of its needs. The Court sought to address those issues in the 1978 case of Houchins v. KQED, but only seven justices participated and the resulting fragmented opinion did little to clarify things. KQED had requested permission to inspect and take pictures of a notorious county jail in Santa Rita. The sheriff denied the request, and ultimately the Court affirmed the jail’s restrictive press-access policy. The opinion mostly tracked Pell and Saxbe, concluding that nothing in the Constitution “[compelled] the government to provide the media with information or access to it on demand.” Houchins also underscored the need to defer to the other branches – to allow them to decide what access the press should have.
The Court has not revisited press prison access since then, so the unfriendly trio of Pell, Saxbe and Houchins is the controlling First Amendment authority that we apply today, making prisons inaccessible to many journalists. The lower courts rarely find an access restriction they can’t affirm. In 1986, the Eleventh Circuit upheld a regulation allowing only people at FCC-licensed media employed as newsgatherers to interview prisoners for broadcast. In 1991, a Florida appeals court ruled that a journalist could be criminally charged for having unauthorized communications with a prisoner. In 2009, the Seventh Circuit upheld a regulation banning in-person meetings between journalists and prisoners in a special confinement unit (where most were on death row) at a federal prison.
Federal access regulations are restrictive, and state ones vary, but they all typically grant wardens and other prison directors a large amount of discretion (hence the fiefdom comment by Fields). Some states permit face-to-face interviews but reserve the right for prison officials to terminate them at any time. Some allow interviews but only with prisoners selected by prison officials. Some limit prisoner-journalist phone time to 15 or 30 minutes. Some do not allow prison officials to talk with journalists without prior approval from the warden or PIO. Most do not allow death row prisoners to be interviewed.
The first key, then, to gaining access is knowing the press access policy for the institution you’re interested in. Ask about the basis of any denials, and get to know the warden and PIO before you need them, to strike while the iron is cold. Have a particular story in mind, too, when requesting access. Prison officials don’t respond well to generic queries (I want to do something on prison conditions...). Also, while most of this focuses on state and federal prisons, the same basic logic applies to other types of detention centers. If someone is held at, say, a military facility, then the military controls access. If someone is held at an ICE or CBP facility, then ICE or CBP controls access. And so on.
Finally, a complication is that some agencies contract out to local jails or prisons to detain people, in which case the local jail or prison rules may affect access. Privatization can be a problem, too. Many private prisons have press access policies similar to those of state and federal prisons, and some simply follow state or federal regulations. But a number have tried to parry scrutiny by claiming that they, as private entities, can do entirely as they please regarding press access.
It’s not easy being a journalist on the prison beat.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS.
This article was originally published by Columbia Journalism Review (www.cjr.org) on July 3, 2018; it is reprinted with permission, with minor edits. Copyright 2018, Columbia Journalism Review.
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