Prison Interviews vs. The First Amendment

From the Fall 2003 issue of The News Media & The Law, page 9.

By Gregg Leslie

The war on terrorism and the Special Administrative Measures applied to those accused and convicted of terrorism-related crimes have certainly curtailed the amount of information the public receives, as pointed out in this issue’s cover story. But it is important to note that the right to interview prisoners has always stood on shaky ground, and state officials around the country have denied requests for prisoner interviews for years — whether as part of a purposeful plan or just arbitrary enforcement of questionable guidelines.

The solution? It’s time to go back to the U.S. Supreme Court, which arguably has already decided the issue, and make the case for a First Amendment right to interview prisoners.

The right to interview prisoners has been so hard to defend because courts do not consider it a constitutional right; nothing in the First Amendment requires prisons to allow access, they say. The Supreme Court solidified this view in 1974 in Pell v. Procunier, finding that the news media had no greater right of access than the general public, and the government was free to restrict the rights of the general public as long as it allowed access to prisons for the purpose of observing the general conditions.

So how do you oppose an issue that has been directly addressed by the Supreme Court? By pointing out that its own subsequent interpretations of the First Amendment in other contexts demand that the justices revisit the prison issue.

When Pell was decided in 1974, there was also no recognized constitutional right to court proceedings. Instead, reporters kicked out of proceedings had to argue that under the “common law” — the general body of law developed over centuries by the courts — they had a right if the public interest in viewing the proceedings outweighed the governmental interest in keeping them closed.

But in a series of cases culminating in 1986 in Press Enterprise v. Superior Court (called “Press Enterprise II” because the same parties brought an access case to the Supreme Court two years earlier), the Court finally fashioned a meaningful standard for a presumptive right of access to court proceedings under the First Amendment. The Court said the right would apply if it was justified by the “experience and logic” of allowing access. The “experience” test required a look at historical practice: Is this the type of proceeding the public has traditionally been allowed to witness? The “logic” test looked at the purpose served by such access: Does being able to witness such proceedings play a significant role in the functioning of the judicial process?

Confinement in prison, or in a jail before or during a trial, is certainly a part of the judicial process, and the same experience and logic test should be applied to determine whether there should be public access to prisoners. The history of access to prisoners is shown by the fact that every state — and even the federal government — allows interviews to some extent, and the trend of closing off access to jails is fairly modern, even if a few decades old in some places.

But the “logic” test is where the media should easily win the right to interview prisoners. The importance of such access was clearly stated by Justice Lewis Powell in Saxbe v. Washington Post, a companion case to Pell decided by the Supreme Court on the same day: “The Government has no legitimate interest in preventing newsmen from obtaining the information that they may learn through personal interviews or from reporting their findings to the public. Quite to the contrary, federal prisons are public institutions. The administration of these institutions, the effectiveness of their rehabilitative programs, the conditions of confinement that they maintain, and the experiences of the individuals incarcerated therein are all matters of legitimate societal interest and concern.”

So now we need a few journalists who will take on those states or prison systems that arbitrarily deny access to prisoners in cases of great public interest and concern, and assert a First Amendment right to interview a prisoner. Any takers?

Gregg Leslie is the legal defense director of The Reporters Committee for Freedom of the Press.