Marquette Law Review
Volume 104
Issue 4 Summer 2020

Article 5

Summer 2021

Orange is the News Blackout: The First Amendment and Media
Access to Jails
Frank D. LoMonte
Jessica Terkovich

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Repository Citation
Frank D. LoMonte and Jessica Terkovich, Orange is the News Blackout: The First Amendment and Media
Access to Jails, 104 Marq. L. Rev. 1091 (2020).
Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss4/5

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ORANGE IS THE NEWS BLACKOUT: THE
FIRST AMENDMENT AND MEDIA ACCESS
TO JAILS
FRANK D. LOMONTE* & JESSICA TERKOVICH**

I. INTRODUCTION ....................................................................................... 1094
IL THE FIRST AMENDMENT GOES TO JAIL ................................................. 1098

A. The Uncertain "Right" to Gather News ..................................... 1098
B. The Evolving "Right of Oversight" in the Criminal Justice System
............................................................................................. 1101
C. Guarded Conditions: Diminished Constitutional Rights Behind Bars
............................................................................................. 1105
III. THROWING AWAY THE KEY: NO RIGHT TO INTERVIEW? .................... 1108
A. Sentenced to Silence: Pell, Saxbe, and Insurmountable Deference
............................................................................................. 1108
B. Houchins Leaves Jail Detainees Locked in Limbo .................... 1111
IV. ACCESS DENIED: How JAILS SCREEN INTERVIEW REQUESTS ............. 1115
A. Lessons from the Prison Setting ................................................. 1115
B. Rationing Face Time: A Survey of County Policies .................. 1116
C. Pushing the Envelope: Jail Policies Test Constitutional Boundaries
............................................................................................. 1119
V. ACCESS UNLOCK.ED? ............................................................................. 1123
A. Diluting Deference ..................................................................... 1123
B. Transparency as a Safety Measure ............................................. 1126
C. The Special Access Case for Jails .............................................. 1130
i. Access to Interviews with Jail Inmates Poses Fewer Dangers
...................................................................................... 1131
ii. Jailers May Not Inflict "Punishment" for Crimes Yet to Be
Adjudicated ......................................................................... 1133
iii. Jails Are Rarely Administered by Experts Owed Ironclad
Deference ............................................................................ 1135
* Professor & Director of the Joseph L. Brechner Center for Freedom of Information at the
University of Florida in Gainesville, Florida; B.A., 1992, Political Science, Georgia State University;
J.D. (Order of the Coif), 2000, University of Georgia School of Law.
** B.A., 2018, Criminology & Law, University of Florida; J.D. (anticipated) 2022, University of
Florida Levin College of Law.

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D. No Way Out: Jail Inmates' Limited Communication Options ... 1137
VI. UNSHACKLING FIRST AMENDMENT RIGHTS ........................................ 1141
A. Current Patchwork Legal Standards Leave Inmates Inadequately
Protected ................................................................................... 1141
B. Striking the Balance of Autonomy Versus Control... ................. 1143
VIL CONCLUSION ....................................................................................... 1149

I. INTRODUCTION
As the COVID-19 pandemic struck the United States in 2020, cases
multiplied rapidly within the confines of county jails. By mid-June 2020, two
hundred ten inmates and two hundred staff members at Detroit's Wayne County
Jail had tested positive for the deadly virus, 1 which was blamed for at least four
employee deaths. 2 In Chicago, one in every six cases of COVID-19 has been
linked to the Cook County Jail, where every infected inmate goes on to infect
approximately two other people, many of them outside of the facility. 3 Reliable
data on the virus's spread in correctional institutions proved elusive; the Reuters
news agency found that official statistics from the federal Centers for Disease
Control "dramatically" understated the number of cases in prisons and jails,
possibly as much as threefold. 4
The novel coronavirus crisis starkly underscores how little the public is
informed about the inner workings of county jails that, as of the most recent
federal count, housed 738,000 people at any given time, more than three out of
every one thousand adults in the country. 5 By one estimate, 4.9 million
people---2.3% of the adult population--cycle through county jails in a given

1. Ross Jones, 'We Don't Have Enough People. '

Wayne County Jail Nurses Warn of

Understaffing,

WXYZ (June 15, 2020, 4:48 PM), https://www.wxyz.com/news/localnews/investigations/we-dont-have-enough-people-wayne-county-jail-nurses-wam-of-understaffing
[https://perma.cc/Q4JY-RJ4C].
2. Peter Eisler, Linda So, Ned Parker & Brad Heath, Across U.S., COVID-19 Takes A Hidden
Toll Behind Bars, REUTERS (May 18, 2020, 11 :00 AM), https://www.reuters.com/investigates/specialreport/health-coronavirus-usa-jails/ [https://perma.cc/J6JF-UCSZ].
3. Matt Masterson, Report: 1 in 6 Chicago COVID-19 Cases Can Be Tied to Cook County Jail,
WWTW (June 4, 2020, 6:33 PM), https://news.wttw.com/2020/06/04/report-1-6-chicago-covid-19cases-can-be-tied-cook-county-jail [https://perma.cc/AE43-G882].
4. See Eisler, So, Parker & Heath, supra note 2 (commenting that "scant testing and inconsistent
reporting from state and local authorities have frustrated efforts to track or contain [the virus's] spread,
particularly in local jails'').

5. BUREAU OF JUST. STAT., OFF. OF JUST. PROGRAMS, U.S. DEP'T OF JUST., JAIL INMATES IN
2018 (2020), https://www.bjs.gov/content/pub/pdf/ji18_sum.pdf[https://perma.cc/8S5N-WLZ9].

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year. 6 Yet the public's ability to scrutinize the operations of jails is largely left
to the grace of the agencies that operate them, as federal courts have hesitated
to recognize any constitutionally guaranteed right of access.
The select few who are discretionarily admitted to visit and tour jails get an
officially circumscribed view. The Supreme Court has not recognized a First
Amendment right for journalists to insist on any particular degree of access,
and in the absence of a constitutional imperative, jails commonly reserve broad
discretion to refuse to admit reporters or to reject requests to speak with specific
inmates, even those who are not dangerous or are in jail on temporary holds
awaiting trial. 7
Over the past forty years, an evolving body of First Amendment case law
has solidified the public's right of access to essential phases of the criminal
justice process. The public has a clearly established right to record the activities
of police doing official business in publicly viewable places, 8 and to attend
criminal court proceedings, including not just the trial itself but also jury
selection, motion hearings, and sentencing. 9 That may be where the First
Amendment right of access ends-even though the need for public oversight
assuredly does not.
This Article suggests that it is time for the Supreme Court to clarify the
confusion resulting from its fractured 1978 ruling in Houchins v. KQED, Inc., 10
refusing to recognize a constitutional right for journalists to visit jails and speak
with willing interviewees. Houchins, which produced no opinion garnering
more than three votes, is part of a perplexing body of First Amendment case
law in the correctional setting that fails to provide clear safeguards against
abuse and overreach. Absent clear safeguards, counties have widely assumed
that they may refuse to admit journalists to inspect jails and speak with
detainees, even for arbitrary or content-discriminatory reasons. One of the
nation's largest jails, in Orlando, Florida, tells reporters that interview requests

6. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POL'Y
INITIATIVE
(Mar.
24,
2020),
https://www.prisonpolicy.org/reports/pie2020.html
[https://perma.cc/8NPQ-Z5YE].
7. See infra Section IV (reporting findings ofnationwide survey of jail policies).
8. See Nicholas J. Jacques, Note, Information Gathering in the Era of Mobile Technology:
Toward a Liberal Right to Record, 102 CORNELL L. REV. 783, 796--98 (2017)(collecting recent circuitlevel First Amendment cases).
9. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
10. 438 U.S. 1, 16 (1978).

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may be rejected "for any reason" and limits interviews to topics "external to the
jail system." 11
Exclusionary jail policies harm more than just journalists. When inmates
are constrained from giving interviews, they are more vulnerable to
mistreatment and neglect. The public is deprived of the information needed to
evaluate the performance of jail authorities and, where necessary, to seek
changes in management practices.
Recalibrating First Amendment doctrine in the jail setting will require the
courts to rethink the near-ironclad deference that, in recent decades, has made
correctional policies all but impervious to constitutional scrutiny. 12 The
prevailing understanding-that speech-restrictive policies will be reviewed
merely for a justification in the general vicinity of reasonablenessinadequately protects the interests not just of those incarcerated, who
concededly surrender some constitutional liberties at the jailhouse gate, but also
of those listening on the other side of the barbed wire.
While First Amendment jurisprudence regarding access to correctional
facilities largely focuses on prisons, this Article concentrates instead on jails
because they are distinguishable from prisons in ways that alter the
constitutional calculus. Jails house considerably more people than prisons, and
those people stay for significantly shorter periods, 13 including those convicted
of infractions as insignificant as trespassing or driving with a suspended
license 14-and those who have not been, and may never be, convicted of a

11. ORANGE CNTY. DEP'T OF CORR., CORRECTIONS DEPARTMENT MEDIA RELATIONS GUIDE,
https://www.orangecountyfl.net/Portals/O/Library/JailJudicial/docs/Media%20Relations%20Guide%20revised%202-l 0-17%20CERT .pdf
[https://perma.cc/7CER-3DM2].
12. See Daniel J. Solove, Faith Profaned: The Religious Freedom Restoration Act and Religion
in the Prisons, 106 YALE L.J. 459, 470 (1996) (criticizing the Supreme Court's minimally rigorous
review of prison authorities' justification for regulations curbing religious freedom, "scrutiny so
meager and deferential that it approximated the 'hands off doctrine''); see also id. at 483 (observing
that "[w]hen courts do not demand substantial evidence to justify prison regulations, there is no way
to distinguish the prison's claims from mere speculation").
13. See ZHEN ZENG, U.S. DEP'T OF JUST., JAIL INMATES IN 2016 (2018),
https://www.bjs.gov/content/pub/pdf/ji16.pdf [https://perma.cc/9VR3-QNDN] (Jail inmates spend an
average of25 days in jail); DANIELLE KAEBLE, U.S. DEP'T OF JUST., TIME SERVED IN STATE PRISON,
2016 (2018), https://www.bjs.gov/content/pub/pdf/tssp16.pdf [https://perma.cc/WY4F-L54M] (In
comparison, the average state prisoner serves 2.6 years behind bars); Jail Statistics, AM. JAIL Ass'N
(2021), https://www.americanjail.org/jail-statistics [https://perma.cc/EY9R-8BM6].
14. See Alexandra N atapoff, How A Simple Misdemeanor Could Land You in Jail for Months,
N.Y. POST (Feb. 2, 2019, 10:36 AM), https://nypost.com/2019/02/02/how-a-simple-misdemeanorcould-land-you-in-jail-for-months/ [https://perma.cc/FXE2-ZYSW] (summarizing author's research
concluding that the justice system overzealously punishes misdemeanor offenses, with outsized

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crime. 15 They are frequently administered not by trained corrections
professionals but by local elected officials with credentials no greater than a
high school diploma, 16 scarcely the "experts" who are owed impenetrable
deference.
In Section II, this Article explains how First Amendment doctrine does, and
does not, protect the right to gather information as a necessary extension of the
right to publish and distribute it, in particular information about the workings
of the criminal justice system. Drawing on that background, Section III focuses
specifically on the correctional setting and the Supreme Court's confounding
Houchins decision-what led to it and how it has been applied to deny
journalists meaningful access to jails and the people held there. Section IV
presents the results of a nationwide survey of county jails' media-access
policies conducted by the Brechner Center for Freedom of Information, which
identifies significant constitutional defects even under a deferential standard of
review. Section V explains why, as a matter of sound public policy as well as
First Amendment law, counties should be affording people in jail some
uncensored opportunity to share information with the news media, including
blowing the whistle on deficiencies in jail practices. The discussion takes note
of the perils of unchecked judicial deference to the purported superior expertise
of correctional authorities and how the judiciary has historically been willing
to second-guess correctional management practices when supervening
constitutional interests are at stake. Finally, Section VI concludes with
recommendations for policymakers to consider to improve the transparency of
detention facilities in light of contemporary events that heighten the public's
already significant interest in the health and safety of incarcerated people.
consequences for those jailed); see also Dave Boucher, 'Purpose of Jail Has Gotten Muddled':
Michigan Lawmakers Propose Changes to Justice System, DETROIT FREE PRESS (July 22, 2020, 12:33
PM),
https://www.freep.com/story/news/politics/2020/07/22/michigan-justice-reformbills/5485255002/ [https://perma.cc/G8EK-XFL7] (reporting on proposed legislation to decrease
penalties for motor vehicle offenses, which are largely blamed for swelling jail populations as people
struggling to pay fines lose their licenses).
15. See Jail Statistics, supra note 13.
16. See Tony Bartelme & Joseph Cranney, SC Sheriffs Fly First Class, Bully Employees and
Line Their Pockets with Taxpayer Money, POST & COURIER (Mar. 16, 2019),
https://www.postandcourier.com/news/sc-sheriffs-fly-first-class-bully-employees-and-line-theirpockets-with-taxpayer-money/article_bed9eb48-2983-11 e9-9a4c-9f34fil2f8378.html
[https://perma.cc/6YE3-X6AC] ("In 1988, South Carolina voters approved a change in the state's
constitution requiring sheriffs to be free of felonies and have at least five years of law enforcement
training and a high school diploma."). Florida does not require any particular degree of training or
education. M. H. HALL, PROFESSIONAL STANDARDS AND CRITERIA TO HOLD THE OFFICE OF SHERIFF
IN THE STATE OF FLORIDA (1993), https://www.fdle.state.fl.us/FCJEI/Programs/SLPillocuments/FullText/Hall_MH.aspx [https://perma.cc/S63Y-UQ6T] (recommending that Florida join Georgia in
requiring at least a high school diploma to qualify to hold sheriff's office).

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IL THE FIRST AMENDMENT GOES TO JAIL
A. The Uncertain "Right" to Gather News

Perhaps no principle of First Amendment law is more venerated or firmly
established than the right to be free from governmentally imposed "prior
restraints" that prevent ideas from being heard. 17 Any government restraint on
the ability to disseminate information comes with a heavy presumption of
unconstitutionality, 18 especially if the restraint is based on content or viewpoint.
"Strict scrutiny" applies to any regulation that proscribes or punishes speech
based on content, meaning the government must show that the regulation "is
necessary to serve a compelling state interest and is narrowly drawn to achieve
that end." 19
The right to gain access to information, while perhaps logically implicit in
the right to publish, is far less well-developed, and to the extent that the right
exists at all, its boundaries are ill-defined. 20 There is, for example, no
constitutionally guaranteed right to compel the government to make its records
available for inspection, so the public must look to statutory law to protect the
right to know. 21
While legal scholars have long advocated for the courts to recognize a
heightened right to observe and record news grounded in the First
Amendment's press clause, that position has yet to gain traction with the
Supreme Court. 22 The Court came closest to recognizing a journalistic right to
17. See Near v. Minnesota, 283 U.S. 697, 711, 713, 722-23 (1931) (stating, in striking down
state statute empowering judges to enjoin publication of newspapers deemed "scandalous," that "it has
been generally, if not universally, considered that it is the chief purpose of the [First Amendment]
guaranty to prevent previous restraints upon publication").
18. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
19. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221,231 (1987).
20. "The Supreme Court and lower courts have developed this First Amendment right to gather
information in a patchwork of cases over the past forty years, but the Court has never explained its
exact origins or rationale." Jacques, supra note 8, at 785 (footnote omitted).
21. See McBurney v. Young, 569 U.S. 221, 232 (2013) (rejecting claim that Virginia's refusal
to afford nonresidents access to government documents violated requesters' constitutional rights: "This
Court has repeatedly made clear that there is no constitutional right to obtain all the information
provided by [freedom-of-information] laws.").
22. See Sonja R. West, Awakening the Press Clause, 58 UCLA L. REV. 1025, 1042--43 (2011)
(observing that, while the Supreme Court has acknowledged as a general principle that news-gathering
must be constitutionally protected, "the Court rarely has supported these statements through actual
safeguards for the process of seeking or obtaining information. It has furthermore never protected the
rights of the press qua press to gather the news"); Timothy B. Dyk, Newsgathering, Press Access, and
the First Amendment, 44 STAN. L. REV. 927, 935 (1992) (arguing that "[w]hile it is certainly proper
that the press have access rights that are as great as the general public's, it hardly follows that press

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gather news in its fractured and confusing set of opinions in Branzburg v.
Hayes, involving a prosecutor's demand for a reporter to testify before a
criminal grand jury. 23 But the discussion in the Court's 5-4 majority opinion
was fleeting and unhelpfully vague: "We do not question the significance of
free speech, press, or assembly to the country's welfare. Nor is it suggested
that news gathering does not qualify for First Amendment protection; without
some protection for seeking out the news, freedom of the press could be
eviscerated. "24
Absent contrary guidance from the Supreme Court, it is widely held that
journalists enjoy no greater right to access government property or information
than the general public and can be held liable for trespass, even on public
property, in pursuit of news if the property is not open to public entry. 25 Nor
are journalists immune from tort liability for trespassing or for gaining entry
based on false representations. 26 For example, the Ninth Circuit found no
actionable First Amendment violation when police cited a photojournalist who
stopped his car behind a highway pileup and refused police orders to return to
his car and move it out of the way. 27 The court held that the photographer could
not bring a constitutional claim because he "fail[ed] to present any evidence
that members of the public generally had a right to park on Interstate 880 and
exit their cars to take pictures of the accident scene."28
This principle applies equally to correctional institutions. The Fifth Circuit
explored this in Garrett v. Estelle, when reporters brought suit after being
allowed to view an execution but barred from filming or photographing the
procedure. 29 Reasoning that the right to speak and publish does not mean that
journalists have an unrestrained right to gather information,30 the court declared

access should be no greater than the public's," and noting the unique public-dissemination and "sifting"
functions that journalists discharge).
23. Branzburg v. Hayes, 408 U.S. 665, 669 (1972).
24. Id. at 681.
25. See New Mexico v. McCormack, 682 P.2d 742, 746 (N.M. Ct. App. 1984) (holding that a
journalist's conviction for trespass for entering a government construction site while covering a protest
was valid).
26. See Frederick v. Biography Channel, 683 F. Supp. 2d 798, 802 (N.D. Ill. 2010) (finding that
media organizations could be held liable for a Fourth Amendment violation for filming arrestees as
part of a staged tableau arranged by police); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F .3d 505,
516--17 (4th Cir. 1999) (ruling that television reporters who obtained employment at a grocery store
under false pretenses to sneak hidden cameras into nonpublic food-preparation areas could be held
liable in tort for breach of duty and trespass).
27. Chavez v. City of Oakland, 414 F. App'x 939, 941 (9th Cir. 2011).
28. Id. at 940.
29. Garrett v. Estelle, 556 F.2d 1274, 1275 (5th Cir. 1977).
30. Id. (citing Zemel v. Rusk, 381 U.S. 1 (1965)).

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the protections afforded by the First Amendment to gathering news do not
extend into matters unavailable to the general public, such as the ability to film
executions. 31
The rights of the journalist and the source are of obvious importance in a
First Amendment analysis, but perhaps less obvious are the First Amendment
interests of the audience that might be denied information. The Supreme Court
has acknowledged the fuzzy outlines of a "right to receive information" that
exists separate and apart from the interests of the speaker in being heard. 32
While the metes and bounds of the right are ill-defined, it has proven decisive
in invalidating overzealous government attempts to regulate what minors may
view or read. 33 For instance, in finding that key content-regulatory portions of
the federal Communications Decency Act of 1996 were unconstitutionally
broad, the Court invoked both the speaker's and the listener's rights in equal
measure: "In order to deny minors access to potentially harmful speech, the
CDA effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another."34
Perhaps the clearest recognition of a First Amendment-based right to
receive information distinct from the rights of the speaker came in Stanley v.
Georgia, in which the Court categorically pronounced: "It is now well
established that the Constitution protects the right to receive information and
ideas."35 In a unanimous outcome, the Court threw out the conviction of a
Georgia man whose collection of pornographic films was found during an
unrelated police search of his home, declaring that "the mere private possession
of obscene matter cannot constitutionally be made a crime."36

31. Id at 1276.
32. Stanley v. Georgia, 394 U.S. 557, 558 (1969).
33. See Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 794 (2011) (stating, in striking down state
law against sale of violent video games to minors, that the state's interest in protecting children's safety
does not include "a free-floating power to restrict the ideas to which children may be exposed");
Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975) ("[M]inors are entitled to a significant
measure of First Amendment protection and only in relatively narrow and well-defined circumstances
may government bar public dissemination of protected materials to them." (citation omitted)).
34. Reno v. ACLU, 521 U.S. 844, 874 (1997).
35. Stanley, 394 U.S. at 564.
36. Id at 558-59; see also Lamont v. Postmaster Gen., 381 U.S. 301,307 (1965) (acknowledging
right to receive mailed literature in invalidating a statute that required post offices to interdict
transmittal of mail identified as communist political propaganda); Tiffani B. Figueroa, Note, "All
Muslims Are Like That": How Islamophobia is Diminishing Americans' Right to Receive Information,
41 HOFSTRA L. REV. 467, 473-74 (2012) (analyzing Stanley and concluding that the audience's right
to receive "is integral to the spread of ideas and discussion regardless of whether ideas may be
controversial").

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The "right to receive" cases generally involve information that already
exists (films, books, video games) as opposed to information that might come
into existence in the future, so extending the right into a generalized
newsgathering right may require leaping an intermediate analytical step.
Nevertheless, in the context of detention facilities, the public's interest in
receiving candid information is profound, though it seldom receives meaningful
judicial consideration when the information is coming from behind bars.

B. The Evolving "Right of Oversight" in the Criminal Justice System
There are two prevailing views of journalists' First Amendment right to
seek interviews: the structural and the functional. 37 The structural approach
looks at protecting the press as an institution and its rights as the only collective
group mentioned in the First Amendment. 38 The functional approach looks to
protect the press as news gatherers, its ability to disseminate information, and
how this function encourages the free and open flow of information in society. 39
The approach each court chooses to adopt in its First Amendment jurisprudence
sets the stage for further decisions and affects how courts choose to protect or
limit the press and its functions.
Although the First Amendment is not generally understood to confer an
affirmative right to observe news as it happens, one governmental functioncriminal justice-is so uniquely important that courts have recognized a
constitutional right not just to distribute information but to gather it.
In Richmond Newspapers, Inc. v. Virginia, the Court held that journalists
have a right to attend criminal trials, as the media is an important link between
the court system and the public. 40 The public needs to know that "society's
responses to criminal conduct are underway" to keep unrest and outrage from
manifesting in a "form of vengeful 'self-help,"' as it would in the "activities of
vigilante 'committees' on our frontiers.'"' 1 The media serves as an independent
check to be sure that justice is being carried out in the court system by reporting
on the proceedings inside courthouses that interested members of the public
may not be able to attend themselves. A journalist's presence in court is a
symbol to the justice system that the public is watching and will hold the
participants accountable for irregularities or abuses.

37. Roberta L. Cairney, Sunlight in the County Jail: Houchins v. KQED, Inc. and Constitutional
Protection for Newsgathering, 6 HASTINGS CONST. L.Q. 933, 943 (1979).
38. Id. at 943.
39. Id
40. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 580 (1980).
41. Id at 571.

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Richmond Newspapers was rooted in the history of openness of criminal
trials to spectators, which, in the Court's view, served societally valuable
functions, including deterring criminality and reinforcing confidence that the
judicial system dispenses justice fairly. 42 A series of cases known as PressEnte,prise I and Press-Enterprise II solidified the right of journalists to access
court proceedings even further.
In Press-Ente,prise I, news organizations were excluded from an
extraordinary six-week jury selection proceeding in a high-profile murder trial
and denied access to the written transcripts afterward. 43 The Court found that
the trial judge violated the journalists' First Amendment rights and that closure
frustrated the "community therapeutic value" of openness. 44 The public has a
right to know that justice is being carried out, even if they cannot witness the
proceedings in person. The Court observed: "When the public is aware that the
law is being enforced and the criminal justice system is functioning, an outlet
is provided" for the public's understandable feelings of shock, anger, and
injustice. 45
The value of allowing the media to inspect hearing transcripts comes from
the fact that those unable to attend in person "can have confidence that
standards of fairness are being observed" and know that "established
procedures are being followed and that deviations will become known.'"' 6
Openness serves the purpose of enhancing "both the basic fairness of the
criminal trial and the appearance of fairness so essential to public confidence
in the system.'"'7
Two years later, Press-Enterprise II established a more concrete test for
whether a presumptive right of media access existed, applying it to journalists'
ability to attend pretrial hearings. 48 The Court held that a right of access must
be justified by "experience" (examining whether access was traditionally
allowed) and "logic" (asking whether access plays a salutary role in the judicial
process). 49 The Court answered both questions affirmatively: the public and
press have been permitted to watch preliminary hearings dating back to the
nation's earliest days (including the 1807 treason prosecution of Aaron Burr),
and openness gives the public confidence that justice is being carried out

42.
43.
44.
45.
46.
47.
48.
49.

Id at 576.
Press-Enterprise I, 464 U.S. 501, 504 (1984).

Id at 509 (quoting Richmond Newspapers, 488 U.S. at 570).
Id
Id at 508.
Id
Press-Enterprise II, 478 U.S. 1, 8-9 (1986).

Id at 9.

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legitimately.50 But the right to access court proceedings is not absolute. Trials
can be closed to the media in the interests of fairness and justice if holding
public proceedings would result in substantial prejudice. 51
The question of whether the Richmond Newspapers and Press-Enterprise
reasoning extends beyond the courtroom and into the correctional system has
been put to the test repeatedly in the context of media access to executions. The
Ninth Circuit, while accepting that there is no general First Amendment right
to insist on being admitted to a prison, nevertheless found a First Amendment
right for journalists to watch the entire process by which execution drugs are
administered, 52 and to hear as well as see the process. 53 Conversely, in a 2020
case, a federal district court in Virginia decided that there was no public, and
hence no journalistic, right to view procedures taking place before the curtain
is opened at an execution.54 The court called it "quite a reach" to infer a right
to observe prison activities from the right to observe criminal trials, as they "do
not occur in the adjudicatory process. If that chasm is to be breached, the
Supreme Court must be the court to make the leap."55 While many states admit
journalists as part of a delegation of official execution witnesses as a matter of
statute, claims of a constitutional entitlement to be present (or to have any
specific degree of access) have generally faltered on Pell/Saxbe/Houchins
grounds, with courts finding that journalists cannot claim a right superior to that
of the general public to be present in the death chamber.56
In recent years, federal courts have explicitly recognized a First
Amendment right to gather information about the criminal justice system in the
context of police conducting official business in public view.57 These cases

50. Id. at 10-13.
51. Id. at 9-10.
52. Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 885-86 (9th Cir. 2002).
53. First Amendment Coal. of Ariz., Inc. v. Ryan, 938 F .3d 1069, 1075 (9th Cir. 2019).
54. BH Media Grp., Inc. v. Clarke, 466 F. Supp. 3d 653 (E.D. Va. 2020).
55. Id. at 662.
56. See Garrett v. Estelle, 556 F.2d 1274, 1278-79 (5th Cir. 1977) (upholding Texas' s refusal to
admit television cameras to the death chamber); see also John D. Bessler, Televised Executions and
the Constitution: Recognizing a First Amendment Right of Access to State Executions, 45 FED.
COMMC'NS L.J. 355, 373-82 (1993) (collecting cases unfavorable to media access claims).
57. See Fields v. City ofPhila., 862 F.3d 353, 355-56 (3d Cir. 2017) (holding that citizens have
a right to film police in public because there is a First Amendment right of access to information about
how public servants conduct their jobs in public); Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir.
2017) (finding that filming the exterior of a police station from a public sidewalk is a constitutionally
protected activity that may not be the basis for detention and arrest); Gericke v. Begin, 753 F.3d I, 10
(1st Cir. 2014) (deciding that state wiretapping law could not constitutionally be applied to prosecute
motorist who videotaped police officer making roadside traffic stop); ACLU v. Alvarez, 679 F.3d 583

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have typically arisen in the context of challenges to statutes that criminalize
eavesdropping or nonconsensual recording of conversations.
The right to film police officers conducting their jobs in public spaces has
been acknowledged since the ownership of devices capable of recording
became commonplace. 58 Some jurisdictions, such as the Seventh Circuit, have
enjoined statutes criminalizing the audio recording of police in public as well,
reasoning that said statutes abridge the right of free speech because "[t]he right
to publish or broadcast an audio or audiovisual recording would be insecure, or
largely ineffective, if the antecedent act of making the recording is wholly
unprotected."59 The right to record police in public is not absolute, however.
The Fifth Circuit stated in Turner that the right to videotape police is subject to
reasonable restrictions on the time, place, and manner ofrecording. 60
Instructively, these right-to-record cases have specifically recognized
policing as a matter of unique public concern. While the courts in cases such
as the Third Circuit's Fields and the Fifth Circuit's Turner could simply have
pointed out that videography is a lawful activity in a public space, they went
further, focusing on the affrrmative right to record police officers in particular. 61
This suggests that it is the heightened public interest in police oversight that
elevated the plaintiffs' activity to a First Amendment concern.
The now-overwhelming consensus that the public has a clear constitutional
right to record the activities of police in public spaces is instructive in two
respects. First, these cases recognize that the act of gathering news-not just
distributing it-is protected expression for purposes of the First Amendment.
Second, these decisions highlight the uniquely sensitive role that law
enforcement plays in society and the public's profound interest in having
confidence that police powers are being used responsibly.

(7th Cir. 2012) (deciding that Illinois eavesdropping law cannot constitutionally be applied to making
audio recordings of police doing official business in public); Glik v. Cunniffe, 655 F.3d 78, 79 (1st
Cir. 2011) (holding that bystander was arrested without probable cause for filming police arresting
another man in public to document what bystander suspected was excessive use of force); Fordyce v.
City of Seattle, 55 F.3d 436 (9th Cir. 1995) (recognizing First Amendment right to gather news in case
of amateur filmmaker who was prevented from filming protest march by police).
58. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
59. ACLU, 679 F.3d at 595 (emphasis omitted).
60. Turner, 848 F.3d at 688.
61. See Fields, 862 F.3d at 359 ("Access to information regarding public police activity is
particularly important because it leads to citizen discourse on public issues, 'the highest rung of the
hierarchy of First Amendment values, and is entitled to special protection."' (quoting Snyder v. Phelps,
562 U.S. 443, 452 (2011))); Turner, 848 F.3d at 688 ("Filming the police contributes to the public's
ability to hold the police accountable, ensure that police officers are not abusing their power, and make
informed decisions about police policy.").

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Taken together with Richmond Newspapers and the Press-Enterprise line
of cases, this body of law implies that some information gathering is protected
under the First Amendment in the criminal justice context. The question then
becomes how much, if at all, the same philosophy might apply to part of the
justice system that takes place behind bars.
C. Guarded Conditions: Diminished Constitutional Rights Behind Bars

Though most rulings on inmate rights come from cases originating in
prisons rather than jails, those rulings set the standard for all penal institutions;
thus, they are relevant in determining where the First Amendment begins and
ends in county jails. The Supreme Court has long held that constitutional
freedoms can be limited inside prisons and jails because of countervailing
safety
concerns:
"Lawful
incarceration
brings
about
the
necessary ... limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system."62 In an illustrative case, the
Ninth Circuit decided that a prisoner in California's storied Alcatraz
Penitentiary could be held to "reasonable" limits in his business correspondence
with the outside world (in that case, efforts to market a book). 63 The inmate
was limited in what business he could conduct from his prison cell because
writings attached to his business papers were "calculated to arouse antagonism"
in recipients. 64
In the 1974 landmark case Procunier v. Martinez, the Supreme Court ruled
in favor of inmates who brought a class action suit challenging the vague
standards used to censor their mail. 65 While the Court found that First
Amendment freedoms were subject to limitations posed by the "special
characteristics of the [institutional] environment," the Justices ultimately
decided the case not out of concern for the inmates' rights but for the rights of
those in the outside world who sought to exchange information with them. 66
The Court set out a two-part test for justifying the censorship of inmate
mail, known as the Martinez test. 67 The first prong requires that the regulation
"further an important or substantial governmental interest" unrelated to limiting
expression. 68 Specifically, such a regulation must advance the security, order,

62.
63.
64.
65.
66.
67.
68.

Price v. Johnston, 334 U.S. 266, 285 (1948).
Stroud v. Swope, 187 F.2d 850,851 (9th Cir. 1951).
Id at 852.
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).
Id at409 (quoting Tinkerv. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,506 (1969)).
Id at 413-14.
Id at 413.

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or rehabilitation of inmates. 69 The second prong requires that the limitation on
First Amendment freedoms be "no greater than is necessary or essential to the
protection of the particular governmental interest" at issue. 70 Therefore, a
restriction on inmate correspondence satisfying the first prong of the test can
still be deemed invalid if it is overbroad. 71 Administrators have latitude in
determining whether the "probable consequences of allowing certain speech in
a prison environment" could cause issues in the facility, allowing for
restrictions that would seem overly broad in the outside world but are justified
due to the unique institutional setting. 72
The Martinez level of protection was limited to only outgoing inmate
correspondence by Thornburgh v. Abbott, in which inmates brought suit
because of a blanket ban on certain publications coming into the prison. 73 The
Court in Thornburgh reasoned that outgoing materials, which merely capture
the grievances that inmates are already voicing amongst each other, pose a
lesser risk of provoking disruption than materials introduced by outsiders. 74 In
reaching its result, the Court acknowledged that subsequent cases had retreated
from the Martinez level of scrutiny out of concern that rigorous or heightened
scrutiny is "not appropriate for consideration of regulations that are centrally
concerned with the maintenance of order and security within prisons."75
As the correspondence cases were being brought to court, a separate but
related body of cases appeared in response to inmate and journalist
communications and interview requests, building the foundation for modem
limits on communication between journalists and those in correctional
facilities. 76
The First Circuit's Nolan v. Fitzpatrick involved a group of prisoners
challenging the constitutionality of a blanket ban on exchanging letters with the
media, specifically letters detailing the conditions of the correctional
institution, treatment by correctional officers, and other personal grievances. 77
While inmates' right to address the media in general had not been addressed in
the First Circuit before, the court had previously found that other First
69.
70.
71.
72.
73.
74.
75.
76.

Id
Id
Id at 414.
Id

Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).
Idat411.
Id at 410.
See Daniel M. Donovan, Jr., Constitutionality of Regulations Restricting Prisoner
Correspondence with the Media, 56 FORDHAM L. REV. 1151, 1153 (1988) (discussing split ofauthority
over level of constitutional protection afforded to prisoners' correspondence with journalists).
77. Nolan v. Fitzpatrick, 451 F.2d 545,546 (1st Cir. 1971).

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Amendment rights existed behind bars, such as the freedom of religion. 78
Relying primarily on the fact that the conditions of the correctional system are
important matters of public interest, of which inmates are peculiarly
knowledgeable, the court held that inmates had a right to send letters to the
media detailing these conditions. 79
A few years later, the Fifth Circuit held in Guajardo v. Estelle that inmates
had a right to correspond with the media, largely free from censorship aside
from reasonable limitations. 80 The court noted that by protecting inmate and
journalist correspondence, the rights of not only inmates but also the public as
a whole were being protected because decisions related to prison conditions
remain a matter of public interest. 81 In an attempt to curb abuses of this
newfound right, prison authorities were given a "reasonable time" to verify that
the addressees to which inmates were sending media mail are, in fact, members
of a media organization and not members of the general public. 82 The Seventh
Circuit, however, has been less protective. In Gaines v. Lane, the court found
that mail from journalists was entitled to no greater protection than any other
mail and could be searched like any other "nonprivileged" correspondence. 83
While inmates enjoy some right to correspond with journalists, not all
journalists are equal in the eyes of the courts. The Eleventh Circuit, inJersawitz
v. Hanberry, held that independent journalists unaffiliated with an FCClicensed broadcasting outlet have fewer rights when interviewing inmates. 84
Jersawitz, an independent journalist, argued that he had a right to seek
interviews with inmates like any other journalist would and should not have
been denied entry based on his employment status. 85 The court applied the
''traditional rational relationship test" and concluded that the "compelling state
interest" standard proposed by Jersawitz was inappropriate because the case
"neither involved a suspect class nor implicated fundamental constitutional
rights." 86 In other words, the court viewed the case not as an infringement on
Jersawitz's First Amendment rights so much as the institution's ability to
manage the flow of requests by enforcing content-neutral access standards.

78.
79.
80.
81.
82.
83.
84.
85.
86.

Id at 547.
Id at 547--48.
Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 1978).

Id
Id
Gaines v. Lane, 790 F.2d 1299, 1307 (7th Cir. 1986).
Jersawitz v. Hanberry, 783 F.2d 1532, 1533 (11th Cir. 1986).

Id
Id

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The court in Jersawitz found that the need for maintaining the security of
the institution outweighed the interest of independent journalists in accessing
inmates for interviews. 87 By allowing only representatives of an FCC-licensed
news outlet into the facility, prison officials can easily "identify those persons
who are not likely to pose any threat to security without the facility having to
conduct extensive individual investigations of each applicant."88 Restricting
who enters the prison helps ensure the facility's security, which was paramount
in this case, as Jersawitz was attempting to enter a maximum security prison. 89
More recently, attention has turned to inmates' ability to use electronic
means to communicate with the outside world. 90 The ability to use the Internet
raises new and different analytical questions because, while mail clerks may
scrutinize each outgoing envelope, there is no comparably effective safeguard
for instantaneous online messaging. Inmates convicted of certain offenses,
such as soliciting child pornography online, embezzlement, or hacking into
other prisoners' records when granted Internet access, have been denied the
right to use email after wardens have shown they would pose a risk if allowed
to access the system. 91 This limitation is just: inmates known to be dangerous
when given Internet access should be denied access to cut them off from a
potential avenue for further crime. However, an inmate's uncertain right toemail leaves it unclear as to whether journalists are able to access certain classes
of inmates for online interviews or e-mail correspondence in an increasingly
digital age.
Ill. THROWING AWAY THE KEY: NO RIGHT TO INTERVIEW?

A. Sentenced to Silence: Pell, Saxbe, and Insurmountable Deference
Journalists' right to interview inmates has historically been limited by the
courts. A series of Supreme Court cases in the 1970s clarified the rights of
inmates as speakers and journalists as news gatherers, including strict
limitations on the privileges journalists can expect when pursuing leads inside
a correctional institution.
In Pell v. Procunier, the Court held that security considerations justify
limiting media access to correctional institutions as long as the restrictions are
87. Id. at 1534.
88. Id.
89. Id. at 1533.
90. See Brennen J. Johnson, Jail (E)Mail: Free Speech Implications of Granting Inmates Access
to Electronic Messaging Services, 11 WASH. J.L. TECH. & ARTS 285,286 (2016) (advocating a limited
constitutional right of access to email services and noting limitations in other existing channels for
inmate communication).
91. Id.

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both content neutral92 and provide prisoners with an alternative means of
communication,93 such as letter writing or phone conversations. Pell involved
a group of writers, editors, and inmates alleging violations of inmates' right of
free speech and journalists' right to the freedom of the press after a prison-wide
ban on interviews with inmates selected by journalists had been instituted. 94
This ban was in the context of a recent escape attempt that had ended in the
deaths of multiple inmates and correctional officers. 95 The prison found that
the policy in effect prior to the objectionable restraint had resulted in press
attention being concentrated on a small number of inmates who had played a
role in the escape attempt, allowing those inmates to gain a degree of notoriety
and influence among their peers (the so-called "big wheel" effect). 96 This
degree of influence concerned the warden, resulting in a new policy that served
as a blanket ban on journalists selecting specific inmates to interview. 97
A blanket ban satisfies content neutrality in that all content, and not one
specific topic, is offlimits. 98 The Court found that the second prong of the test,
a viable alternative means of communication, was satisfied because all inmates
enjoyed an unrestricted ability to communicate to the press through their
families, attorneys, or clergy who visited them in the institution. 99 The
Constitution does not afford journalists special privileges to access information
that is not generally available to the public, 100 and thus they have no special
privilege to access correctional facilities and inmates, as the general public is
barred from wandering in to ask questions.
The Court noted, however, that the regulation under scrutiny was "not part
of an attempt by the State to conceal the conditions in its prisons or to frustrate
the press' investigation and reporting" of what they may find there. 101
Journalists were still allowed to tour the facility and ask questions of any inmate
they came across, as well as afforded the opportunity to interview selected
inmates or sit in on prison program group meetings. 102 Placing limits on

92. Pell v. Procunier, 417 U.S. 817, 829 (1974).
93. Id at 823.
94. Id at 819.
95. Id at 831.
96. Id at 831-32; Daniel Bernstein, Comment, Slamming the Prison Doors on Media Interviews:
California's New Regulations Demonstrate the Needfor a First Amendment Right ofAccess to Inmates,
30 MCGEORGE L. REV. 125, 134 (1998).
97. Pell,417U.S.at817.
98. Id at 825.
99. Id at 825.
100. Id at 834.
101. Id at 829.
102. Id at 830.

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scheduled interviews to prevent journalists from focusing on a handful of
inmates, and thus preventing these inmates from gaining influence in the prison
system, served legitimate interests and did no harm to either inmates' or
journalists' First Amendment rights. 103
Pell was accompanied on the same day by Saxbe v. Washington Post Co.,
which challenged the constitutionality of a Federal Bureau of Prisons policy
that stopped journalists from interviewing individual federal inmates at any
institution more secure than a minimum security prison. 104 In a short opinion
relying largely on Pell, the Court held that this limit did not abridge the
journalists' right to the freedom of the press, following the test laid out in Pell
and stressing that, while interviews were limited, correspondence was virtually
unlimited. 105 All outgoing correspondence between inmates and the media
went uninspected, and incoming correspondence was only opened to check for
contraband or statements inciting illegal acts. 106
In his dissent, Justice Powell raised the issue of the public's right to know,
stating that the public, which is largely barred from accessing correctional
facilities, "must therefore depend on the press for information concerning
public institutions." 107 The press is the representative of the public's interest,
and this absolute prohibition "substantially impairs the right of the people to a
free flow of information and ideas on the conduct of their Government." 108
Powell's view is significant because it recognizes, as the majority did in
Martinez, that constitutional interests other than those of the inmate speaker are
at stake when communications are constrained.
The Pell approach inverted well-settled First Amendment principles in the
government's favor. Instead of inquiring whether the government could
employ less restrictive means, the Court instead focused on whether the
information could reach the public through alternative means, which relieves
the government of the burden of showing that its restriction is a well-tailored
response to a perceived problem. 109 The Court's approach has been criticized
for failing to adequately consider whether the alternative means of

103. Id at 827-31.
104. Saxbe v. Wash. Post Co., 417 U.S. 843, 844 (1974).
105. Id. at 847.
106. Id
107. Id at 864 (Powell, J., dissenting).
108. Id
109. See Robert N. Brailas, Press Access to Government-Controlled Information and the
Alternative Means Test, 59 TEX. L. REV. 1279, 1295-96 (1981) (criticizing Pell approach because it
"shifts the burden of proof' to the speaker and "thereby reverses the law's normal solicitude for first
amendment rights").

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communication (such as mail and phone calls) were an effective substitute for
the unique value of in-person interviews.11°
Pell and Saxbe left uncertain what level of scrutiny the Court regarded as
appropriate in analyzing restraints on speech in the institutional setting. m
Though the Court focused on the availability of alternative channels of
communication-normally a feature of "intermediate scrutiny"-other
elements ofthePell/Saxbe analysis were more deferential than that. 112 The lack
of a clear standard was noted in the Court's subsequent 1977 prisoner-rights
ruling, Jones v. North Carolina Prisoners' Labor Union, Inc., in which the
majority afforded extraordinary deference to prison regulators' assessment that
allowing inmate laborers to unionize would cause disruption: "It is enough to
say that [prison officials] have not been conclusively shown to be
wrong .... " 113 In his dissent, Justice Marshall accused the majority of
"blindly" deferring to the prison's rationale and observed that the Court's
analysis departed from both the First Amendment standards that would apply
anywhere else and the Court's history of independently scrutinizing the
reasonableness of justifications offered by authorities.11 4
In a 1987 case involving restrictions on inmate-to-inmate correspondence,
Turner v. Safley, the Court emphatically answered Pelf's unanswered question
in favor of full-throated deference: "[W]hen a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests. " 115 In other words, a regulation need only
"reasonably relate" to a legitimate objective; it need not be essential to advance
that objective, or be well-tailored to do so.
B. Houchins Leaves Jail Detainees Locked in Limbo
Only once has the Supreme Court directly confronted the issue of inmate
media communications in the setting of a jail rather than a prison-and that
case, Houchins v. KQED, Inc., produced no clear consensus. 116 KQED was
denied the right to tour and photograph a housing unit where an inmate
110. See id at 1299 (noting the Court failed to take account of the importance of face-to-face
contact in enabling journalists to evaluate credibility and in assuring inmates they could speak without
being surveilled).
111. See Seth L. Cooper, The Impact ojThomburgh v. Abbott on Prisoners' Access to the Media,
and on the Media's Access to Prisoners, 16 NEW ENG. J. CRIM. & CIV. CONFINEMENT 271, 276 (1990)
(characterizing the standard employed by the Pell Court as "in essence, intermediate scrutiny").
112. Id at 284; CompassCare v. Cuomo, 465 F. Supp. 3d 122, 160 (N.D. N.Y. 2020).
113. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977).
114. Id at 141, 143 (Marshall, J., dissenting).
115. Turner v. Safley, 482 U.S. 78, 89 (1987).
116. Houchins v. KQED, Inc., 438 U.S. 1, 3 (1978).

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committed suicide and a prison psychiatrist stated that conditions were
responsible for some of the illnesses of his patients. 117 These conditions
included "alleged rapes, beatings, and adverse physical conditions" that went
unaddressed. 118
While the journalists' suit was pending, the county sheriff revised the jail's
media policy so that periodic tours would be made available, although the wing
where the suicide occurred-in which the journalists had the greatest interest
because of its reputedly unsafe conditions-remained off-limits.11 9
Notwithstanding the revised policy, a U.S. district court granted the news
organization's petition for an injunction, and a divided panel of the Ninth
Circuit affirmed. 120
The Ninth Circuit viewed the jail's policies as a content-neutral constraint
on the time, place, or manner of speech reviewable under the Supreme Court's
0 'Brien standard, which asks whether the restriction "furthers an important or
substantial governmental interest unrelated to suppressing speech" and is
narrowly tailored to achieve that interest. 121 The Ninth Circuit majority took
note of the federal prison system's much more permissive standards for
accommodating media visitors and concluded that the district court had
legitimate grounds to grant relief to the news organization. 122 The court
indicated that, while the press and public have no different level of
constitutional entitlement to visit jails, "because of differing needs and
administrative problems, common sense mandates that the implementation of
those correlative rights need not be identical." 123 The county appealed to the
Supreme Court. 124
With Justices Blackmun and Marshall abstaining, a shorthanded Court
produced a 4--3 plurality reversal, consisting of Chief Justice Burger's threeJustice lead opinion in the jail's favor and Justice Stewart's halfhearted
concurrence. 125 Although the Burger plurality stated that the public maintains
a right to know about prison conditions and that the media plays an important
role in providing this information, there is no constitutionally protected right
for the media to enter correctional institutions or to bring along recording

117.
118.
119.
120.
121.
122.
123.
124.
125.

Id at 3.
Id at 5.
Id at 4--5.
See KQED, Inc. v. Houchins, 546 F.2d 284,286 (9th Cir. 1976), rev'd, 438 U.S. 1 (1978).
Id at 286 (citing United States v. O'Brien, 391 U.S. 367,377 (1968)).
Id
Id
Houchins, 438 U.S. at 24.
Id at 19.

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equipment to document the conditions inside. 126 The First Amendment does
not guarantee a right of access to government-controlled sources of
information, Burger wrote, nor does previous jurisprudence create such a
right. 127 Citing the Zemel v. Rusk holding that there is no First Amendment
right to insist on being granted a passport for an information-gathering trip
abroad, 128 the plurality observed that "the prohibition of unauthorized entry into
the White House diminishes the citizen's opportunities to gather information
he might find relevant to his opinion of the way the country is being run, but
that does not make entry into the White House a First Amendment right." 129
Most significantly, the Court agreed with the Zemel holding that "[t]he right to
speak and publish does not carry with it the unrestrained right to gather
information." 130 In the view of the Burger plurality, under Pell and Saxbe, it
was decisive that journalists were given no inferior level of access than the
general public.
The Burger plurality noted that plenty of information could flow to the
public through reports released by the investigation into the suicide and by the
health and safety reports that were already required and released "at regular
intervals." 131 Burger observed that other sources were accessible to journalists,
including the detainees' lawyers, released detainees, and jail employees. 132
Burger also noted that journalists could gain access, just like any other social
visitor, to inmates they knew personally or could obtain interviews with pretrial
detainees by obtaining the consent of the judge and all parties to the case, so
the opportunity to visit inmates was not zero. 133
The force of Houchins is undercut by the Stewart concurrence that supplied
the decisive fourth vote. While agreeing that there is neither a generalized
public right to demand entry to penal institutions nor any superior right of
access for journalists, Stewart was nonetheless prepared to give journalists
some preferred degree of access based on "the practical distinctions between
the press and the general public." 134 In Stewart's view, the tours arranged by
the sheriff for the public's edification provided sufficient access for the public
to do its job, but not for the press: "[T]erms of access that are reasonably
imposed on individual members of the public may, if they impede effective
126.
127.
128.
129.
130.
131.
132.
133.
134.

Id at 9.
Id
Zemel v. Rusk, 381 U.S. 1, 16 (1965).
Houchins, 438 U.S. at 12 (quoting Zemel, 381 U.S. at 16--17).
Id
Id at 15.
Id
Id at 6.
Id at 16 (Stewart, J., concurring).

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reporting without sufficient justification, be unreasonable as applied to
journalists who are there to convey to the general public what the visitors
see." 135
Justice Stevens, whose dissent drew two joiners, took issue with the
plurality's framing of the question. To Stevens, the question was not whether
journalists had the same level of access as members of the public but whether
both the press and public could be kept out of the key living areas of the jail
entirely.13 6 The jail's "no-access policy," Stevens wrote, "could survive
constitutional scrutiny only if the Constitution affords no protection to the
public's right to be informed about conditions within those public institutions
where some of its members are confined." 137 In the dissenters' view, that could
not be the case: a jail is "an integral component of the criminal justice system"
to which the public has a constitutional right of access, and society has a
"special interest" in making sure that jails are not imposing punishment on
pretrial detainees who may never be found guilty of anything. 138
Given the equivocal Stewart concurrence, which might just as easily have
been a dissent, Houchins leaves the state of the First Amendment as applied to
county jails in considerable doubt. Counting Stewart and the three dissenters,
there were four votes-enough to be decisive on a short bench-for the
proposition that journalists could insist on a right to bring recording devices
along on tours even though public visitors could not.
Case law applying Houchins to subsequent media requests for access to jail
inmates is scarce. This likely reflects the reality that jail stays are sufficiently
short that neither the detainees themselves nor news organizations are prepared
for a multi-year fight in federal court over a point that will be practically, if not
legally, moot by the time of resolution. A handful of subsequent cases have
applied Houchins rather narrowly when the setting is anything other than a
request for access to a specific inmate in jail. For example, lower courts have
found that it does not apply to "quasi-judicial government administrative
proceeding[s]." 139 Some courts have even entertained the idea that journalists
have a right to access inmates who are under sentence as long as they are not
physically in the jail at the time. 140
The court in Philadelphia Inquirer v. Wetzel stated that Houchins did not
apply to journalists seeking to view execution proceedings because the

135.
136.
137.
138.
139.
140.

Id at 17.
Id at 27-28 (Stevens, J., dissenting).
Id at 30.
Id at 36-38.
Detroit Free Press v. Ashcroft, 303 F.3d 681, 696 (6th Cir. 2002).
Phila. Inquirer v. Wetzel, 906 F. Supp. 2d 362, 369 (M.D. Pa. 2012).

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execution in question was not being conducted inside a penal institution. 141
Under Pennsylvania law, all executions were to occur at the State Correctional
Institute at Rockview, but at the time, the execution chamber had been moved
outside of the prison's perimeter to a former field hospital. 142 Thus, journalists
did not need to enter the prison to view the execution. 143 The court concluded
that for this reason, their analysis could not be controlled by Houchins, as the
execution chamber was state property but was not akin to the jail at issue in
Houchins. 144 Similar to journalists enjoying access to courtrooms during trial,
but being barred from the judge's chambers and jury room, the Philadelphia
Inquirer was seeking access to the execution and the specially built execution
chamber not the internal workings of the prison that journalists would see if
they were to interview inmates on-site. 145 The court rejected the idea that
Houchins applied because the journalists were not seeking the ''unregulated
access" discussed by the Houchins Court but rather an extension of privileges
they already held. 146
The Inquirer ruling shows the narrowness of the Houchins holding and
offers journalists some potential workarounds. If, as the Third Circuit
understands it, Houchins is about access to the physical facility rather than to
inmates, there may be greater latitude to speak with an inmate who is on work
release, appearing in court, or otherwise outside the confines of the jail.
Much like the restrictions on recording police procedures in public,
restrictions on interviewing in correctional facilities have been added and
clarified since the days of Pell, Saxbe, and Houchins. While journalists have
been guaranteed the right to some access, the guarantee does not seem to extend
to the right to insist on speaking in person with a specific inmate as long as
alternatives, such as exchanging letters, remain available.
IV. ACCESS DENIED: How JAILS SCREEN INTERVIEW REQUESTS

A. Lessons from the Prison Setting
Studies have found that restrictions on journalists' access to prison inmates
vary widely among states. 147 Some states, like Maine, allow journalists to

141. Id
142. Id
143. Id
144. Id
145. Id
146. Id at 370.
147. Jessica
Pupovac,
FOI
Toolbox,
QUILL
(Aug.
7,
2012),
https://www.quill.spjnetwork.org/2012/08/07/foi-toolbox-31/ [https://penna.cc/BKL9-ZLPN].

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[104:1093

arrange for in-person interviews with inmates of their choosing, though
facilities reserve discretion to end the interview if the conversation strays from
pre-approved topics. 148 While this gives journalists discretion in who they
interview, the facility's power to terminate the interview raises both
constitutional issues (content or viewpoint discrimination) and ethical issues
for journalists, who may not be comfortable accepting government
intermediation of interview topics. Even stricter states, like Kansas and
California, do not allow journalists to interview specifically requested inmates,
requiring instead that sources be chosen by prison officials. 149 Correctional
administrators justify this policy by saying that frequent interviews may give
an inmate celebrity status and undue influence over their fellow inmates. 150
States like Alabama, Arizona, Georgia, and Louisiana have relatively loose
guidelines for determining how interview requests are granted or denied,
leaving decisions up to the individual facility .151 In practice, access is routinely
denied to journalists. 152 Brian Corbett, a spokesman for the Alabama
Department of Corrections, told an interviewer that he cannot remember "any
times we've granted access in the last year and a half." 153 Additionally, some
states strictly regulate the recording equipment journalists can bring into
prisons. New York, for example, requires that journalists use prison-issued
writing utensils that have been designed for safety. 154
In the absence of a constitutional compulsion to do so, states have resisted
allowing journalists to interview the inmates of their choosing about the topics
of their choosing. This widespread practice spills over to the local level as well.
B. Rationing Face Time: A Survey of County Policies

Media access policies in county jails have received far less attention than
those at the national and state levels. This may be because it is difficult to study
so many scattered jurisdictions or because inmates move through the jail system
relatively quickly. Researchers from the Brechner Center for Freedom of
Information used open-records requests seeking to examine the interviewing
policies at sixty-four county jails across the country, representing twenty-four
states. The jails were selected to favor larger municipal areas where frequent

148. Id
149. Id

150.
151.
152.
153.

Id
Id
Id
Id

154. N.Y. DEP'T OF CORR. SERVS., RELEASE OF INFORMATION TO THE NEWS MEDIA DIR
# 0401 (2008).

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media requests would be more probable and to avoid states where open-records
laws from nonresidents are not honored. 155 Of the sixty-four agencies that
received a public-records request, thirty-six agencies from a total of sixteen
states responded with copies of written policies, while twenty-eight failed to
provide responsive documents. 156
Among the three dozen policies reviewed, obvious patterns emerged. First,
in almost no jurisdiction can a journalist show up and expect to be admitted to
conduct an interview. Jails commonly require advance notice and several levels
of signoffbefore a journalist will be admitted, with the notable exception of the
San Francisco County Jail, where journalists may present their press credentials
on arrival for admittance with no advance approval. 157 Most counties interpose
additional hurdles in addition to administrative approvals, including requiring
that the inmates' counsel approve the interview. 158 Los Angeles, for example,
has a policy of denying interviews with inmates represented by a public
defender, unless the public defender approves an exception. 159 Orange County,
Florida, requires approval forms to be mailed back and forth between inmates
and journalists and then sent back for final approval by jail staff. 160 Many even
require that the inmates sign waivers releasing the county from liability for any
tort claims arising out of the consequences of the interview.
Many jails have strict policies against speaking with or photographing
inmates who are on hold for other jurisdictions or are in federal custody. 161 Jails
also commonly deny access to detainees who have yet to be arraigned, 162 which
perhaps counterintuitively puts the tightest restriction on those who have not
even been formally charged with a crime, let alone convicted.
A common restriction is to forbid journalists from interviewing specific
inmates of their choosing, as opposed to incidentally encountering interview
155. Public-records laws in Alabama, Arkansas, Delaware, Missouri, New Hampshire, New
Jersey, Tennessee, and Virginia enable agencies to refuse requests from requesters without a local
address. McBurney v. Young, 569 U.S. 221,226 (2013).
156. Some of the twenty-eight non-responsive agencies imposed conditions on cooperation such
as showing up in person to present a photo ID, but the vast majority of the twenty-eight simply failed
to answer the request at all or answered only with an acknowledgement of receipt.
CNTY.
SHERIFF'S
OFF.,
CONTACTING
INCARCERATED
PERSONS,
157. S.F.
https://www.sfsheriff.com/whats-your-situation/i-am-member-media/media-requests
[https://perma.cc/AC6E-KPNR].
158. E-mail from Casey Roebuck, Dir. of Pub. Info., Tulsa Cnty. Sheriffs Off., to Authors (Aug.
3, 2020, 4:58 PM) (on file with authors).
159. CUSTODY DN., L.A. CNTY. SHERIFF'S DEP'T, NEWS MEDIA INTERVlEW REQUESTS 510/020.05 (2013).
160. ORANGE CNTY. DEP'T OF CORR., supra note 11, at 1.
161. CUSTODY DN., L.A. CNTY. SHERIFF'S DEP'T, supra note 159.
162. Id

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subjects during a tour. 163 Like any other member of the public, a journalist may
visit a family member or friend in jail, with the inmate's approval, but with no
special degree of access. 164
The vast majority of facilities will not allow recording or photographic
equipment without specific approval. When these devices are approved, there
are often strict limits on both what can be brought in and what can be
photographed or recorded. For example, in Jacksonville, Florida, journalists
are not allowed to film any locking mechanisms on doors or cellblocks, and
they cannot film groups of inmates unless consent is received from each inmate
or their faces are not shown in any of the footage. 165 Some facilities even
specify the exact number of pens and pencils allowed behind bars for safety
reasons. 166
Commonly, a media interview is considered to count toward the maximum
number of social visits that an inmate is allotted during the week, as contrasted
with official visits from attorneys and investigators, which are unlimited. 167
This forces inmates to make tradeoffs between speaking with the media and
speaking with family and friends. In the San Diego County Jail, for instance,
an interview with a journalist counts as half of the social visits an inmate is
allowed for the week. 168 Visits with journalists are often kept short. In San
Diego County, inmates are allowed thirty minutes, 169 and in Orange County,
Florida, inmates are given forty-five minutes. 170
In sum, while the details of jail policies vary considerably, a few general
patterns are discernible: advance approval, generally by one or more top
officials such as the sheriff or chief jailer as well as the inmates' counsel, is
required. Media visits are limited in time, deducted from the inmates' allotment
of social visits, and likely to be limited to unrecorded pen-and-pad
conversations only.
163. EAST BATON ROUGE PAR. PRISON, COMMUNICATION WITH THE MEDIA (2010) (on file
with authors) (produced in response to FOi request).
164. E-mail from Jeannine Buckner, Legal Dep't, St. Tammany Par. Sheriff's Off., to Adriana
Merino, Brechner Ctr. for Freedom of Info. (June 30, 2020, 1:28 PM) (on file with authors); see also
PALM BEACH CNTY. SHERIFF'S OFF., CORRECTIONS OPERATING PROCEDURES, INMATE VISITATION
COP 930.00 (2018).
165. JACKSONVILLE SHERIFF'S OFF., CORRECTIONS FACILITY ACCESS AND VISITATION ORDER
601 (2019) (on file with authors) (produced in response to FOi request).
166. CAL. CODE REGS. tit. 15, § 3261.5 (2020).
167. SAN
DIEGO
CNTY.
SHERIFF'S
DEP'T,
MEDIA
GUIDE,
https://www.sdsheriff.gov/home/showpublisheddocument/542/637432951658230000
[https://perma.cc/5AGY-92QS].
168. Id
169. Id
170. ORANGE CNTY. DEP'T OF CORR., supra note 11, at 1.

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C. Pushing the Envelope: Jail Policies Test Constitutional Boundaries

Even under the deferential level of review afforded to management of
detention facilities, at least some of the policies in force around the country
raise constitutional red flags for three primary reasons. First, some jail policies
require journalists to surmount additional hurdles beyond what is required of
non-journalist public visitors, which seems irreconcilable with the core
holdings of Pell, Saxbe, and Houchins. Second, jails commonly reserve
unfettered discretion to deny inmates and journalists an opportunity to speak
face-to-face for any reason, without safeguards to prevent selective
enforcement. And third, at least a few jails impose content- or viewpointdiscriminatory conditions that purport to control the topics that inmates may
discuss or that journalists may publish.
The most clearly constitutionally problematic policies are those in the latter
category, purporting to dictate the content of interviews. In Florida, inmates in
Orlando's Orange County Jail are forbidden from discussing matters related to
the jail. 171 A government policy that purports to ration the ability to speak based
on content or viewpoint is presumed to be unconstitutional. 172 Once a policy
like Orange County's is found to prohibit discussion of certain topics, the policy
will be invalidated unless it is as narrowly tailored as possible to satisfy a
compelling governmental interest. 173 Keeping inmates from complaining to the
press about the conditions of their confinement would not, if challenged, qualify
as a compelling governmental interest for purposes of First Amendment
analysis. By cutting off an inmate's ability to discuss problems in the facility
with outsiders,jail administration is also cutting off any ability of the press and
public to keep the jail accountable for how it treats those in its care. A policy
like Orange County's is almost certainly facially unconstitutional and would be
readily voided if challenged.
Perhaps the most bizarre and extreme set of media restrictions belong to
jails in Georgia's Dougherty County and North Carolina's Gaston County,
where policies purport to restrict news organizations' freedom to publish what
they learn by interviewing inmates. The two policies are nearly identical in
their operative terms. Both sheriffs departments insist that journalists must
agree to "make reasonable attempts to verify any allegations" made by inmates
and provide the sheriff or jail administrator "with an opportunity for written or

171. Id
172. See Police Dep't v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment
means that government has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.").
173. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

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verbal response to any allegation" prior to broadcast or publication. 174 The
Supreme Court has held that a statute requiring news organizations to give
people accused of wrongdoing an opportunity to respond to the accusations is
unconstitutional because it compels speech. 175 The Dougherty rule goes on to
say that a journalist ''will not obtain and use personal information from only the
primary source nor from one (1) inmate concerning another inmate who refuses
to be interviewed." 176 The Gaston policy similarly provides that a journalist
"may obtain and use personal information from the primary source only and
may not obtain information from one inmate regarding another inmate who
refuses to be interviewed."177 These are classic "prior restraints" of the sort that
federal courts have unhesitatingly struck down for nearly a century. 178 A
government agency may not dictate the content of news coverage or limit
journalists' use of lawfully gathered information. 179 Indeed, it is entirely
foreseeable that one prisoner may mention another in connection with a matter
of public concern, such as identifying a well-connected inmate who is receiving
improper preferential treatment. 180
New Jersey's Passaic County enforces exceptionally strict controls. It
requires approval from three different officials, after which a Public
Information Officer must accompany the journalist throughout the interview
and must be allowed to look over any photos or videos taken during the visit. 181
174. DOUGHERTY CNTY. SHERIFF'S OFF., STANDARD OPERATING POLICY & PROCEDURE
POLICY 9.30 (on file with authors) (produced in response to FOi request); GASTON CNTY. SHERIFF'S
OFF., OPERATIONAL PROCEDURES 5.08 (2005) (on file with authors) (produced in response to FOi
request).
175. Mia. Herald Publ'g Co. v. Tornillo, 418 U.S. 241,256 (1974).
176. DOUGHERTY CNTY. SHERIFF'S OFF., supra note 174.
177. GASTON CNTY. SHERIFF'S OFF., supra note 174.
178. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) ("[A] law
subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow,
objective, and definite standards to guide the licensing authority, is unconstitutional.").
179. See Mia. Herald Publ'g Co., 418 U.S. at 256; see also Bartnicki v. Vopper, 532 U.S. 514,
527 (2001) (concluding that the First Amendment foreclosed criminally prosecuting a radio journalist
for receiving a tape recording unlawfully made by an eavesdropper and then broadcasting its contents).
180. See, e.g., Martha Ross, Did Felicity Huffman Get Special Privileges with Early Family Visit
at
Dublin
Prison?,
MERCURY
NEWS
(Oct.
21,
2019,
9:00
AM),
https://www.mercurynews.com/2019/10/21/did-felicity-huffman-get-special-privileges-with-earlyfamily-visit-at-dublin-prison/ [https://perma.cc/W9G3-8YVP] (reporting that Emmy-winning actress
who pied guilty in college admissions scandal received expedited approval for family visit and other
perquisites); Marla Lehner, Did Paris Hilton Get Special Treatment in Jail?, PEOPLE (July 13, 2007,
1:00
PM),
https://people.com/celebrity/did-paris-hilton-get-special-treatment-in-j ail/
[https://perma.cc/QG89-XK.5M] (reporting allegations that Los Angeles County sheriff's deputies
improperly gave celebrity heiress use of a cellphone and other special privileges).
181. 2 PASSAIC CNTY. SHERIFF'S OFF., POLICIES AND PROCEDURES § 5 (2008) (on file with
authors) (produced in response to FOi request).

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This undermines the longstanding federal statutory protection from the Privacy
Protection Act, which forbids government employees from compelling
journalists to submit to the seizure or search of their unpublished work product,
with narrow exceptions. 182 It is questionable whether a journalist can be
compelled to waive the benefit of the Privacy Protection Act as a condition of
admittance to a government facility. Additionally, the prospect of mandatory
governmental review poses a risk of chilling constitutionally protected speech,
as the policy implies that there may be circumstances under which the prison
would seize or erase a journalist's work.
A larger set of jail policies exist in a constitutional gray area because jail
authorities have reserved unlimited discretion to deny an interview request for
any reason, without even the obligation to specify a reason or provide an
opportunity to challenge the decision. 183 Equally doubtful are policies that
purport to reserve total discretion to refuse, or end, an interview with or without
cause. 184 When a government agency acts as a gatekeeper, obstructing a
speaker from reaching the intended audience without permission, the First
Amendment is understood to require objective standards to cabin the decisionmaker's discretion. 185 Policies that enable government officials to subjectively
decide case by case which speaker may be heard are strongly disfavored. 186
Statutes that lack neutral criteria to guide the exercise of official discretion are
regularly struck down as unconstitutional. 187 Even if the reason for obstructing
an interview need not be especially compelling, some rationale beyond the
decision-maker's subjective biases must exist. A wholly discretionary policy
would invite suppression of known whistleblowers, or the selective exclusion
182. 42 U.S.C. §§ 2000aa(a)(l), 2000aa(b)(l) (1996).
183. In a notable exception, the rules of the Norfolk Sheriff's Office provide that, if a news
organization's request for an interview is refused, the organization is entitled upon request to a written
explanation for the rationale. See NORFOLK SHERIFF'S OFF., MEDIAIINTERAGENCY RELATIONS
POLICY AND PROCEDURE§ 131.11 (on file with authors) (produced in response to FOI request).
184. See PASSAIC CNTY. SHERIFF'S OFF., supra note 181.
185. See Shuttlesworth v. City ofBirmingham, 394 U.S. 147, 151-52 (1969).
186. See supra note 180; see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939)
(striking down statute that empowered municipal public safety director to refuse a permit on his mere
opinion that refusal will prevent "riots, disturbances or disorderly assemblage'').
187. See Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002) ("Where the licensing official
enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he
will favor or disfavor speech based on its content."); City of Lakewood v. Plain Dealer Publ'g Co., 486
U.S. 750, 761 (1988) (striking down a permitting system that gave the city manager unfettered
discretion to permit or deny the placement of newspaper racks on city property); see also Trey Hatch,
Keep on Rocldn' in the Free World: A First Amendment Analysis of Entertainment Permit Schemes,
26 COLUM. J.L. & ARTS 313, 320--21 (2003) (explaining that, to be constitutional, a licensing system
"must not grant unbridled discretion to decision-makers, but rather must incorporate narrow, objective,
and definite standards or limits to guide their decision").

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of investigative reporters known to be pursuing unflattering stories hurtful to
the institution's reputation. A policy empowering jailers to withhold or
withdraw approval for interviews at any time for any reason is even arguably
defensible only if there is never a constitutional entitlement to an interview in
county jails, which would be a questionably aggressive interpretation of First
Amendment rights post-Houchins.
Finally, many of the policies produced by county jail authorities raise First
Amendment questions because they impose greater constraints on journalist
visitors than on non-journalists, such as by requiring proof of authorization by
the inmate's lawyer or requiring additional layers of signoffs from a publicrelations officer. While journalists may not be entitled to any greater access
than public visitors, there is no basis for consigning reporters to a differentially
disfavored class with diminished access. 188 Seeking approval from all attorneys
and judges involved in the case-as is the policy in Harris County, Texas,
where Houston is located 189-disadvantages journalists and discourages them
from seeking interviews, as the additional steps take up limited time and
resources that ordinary visitors do not have to expend.
Whether additional hurdles only for news-media visitors are or are not
constitutional under prevailing legal standards will depend on whether courts
view the proper comparison as "journalists versus members of the general
public" or ''journalists versus other authorized visitors." Many jails allow only
a select few members of the public (family, lawyers, clergy) to make an
appointment to see a specific inmate, so arguably a journalist who is given that
opportunity is already getting greater access than the average citizen. For
example, the county jail in Tulsa, Oklahoma, allows in-person visits only by
inmates' parents, grandparents, spouses, and children. 190 The fact that meetings
with journalists require additional formalities-the inmate must sign a waiver,
and the inmate's counsel must receive advance notice 191---could be viewed as
putting journalists in a disfavored position as compared with family visitors or
could be viewed as putting journalists in a preferred position as to non-family
members of the public.

188. See Pell v. Procunier, 417 U.S. 817, 834 (1974) (stating that journalists "have no
constitutional right of access to prisons or their inmates beyond that afforded the general public"); see
also Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart, J., concurring) ("The Constitution does
no more than assure the public and the press equal access once government has opened its doors.").
189. HARRIS
CNTY.
SHERIFF'S
OFF.,
MEDIA
RELATIONS,
https://www.harriscountyso.org/AboutUs/ContactUs/newsroom.aspx
[https://perma.cc/LV2YK4CQ].
190. TULSA CNTY. SHERIFF'S OFF., JAIL INFORMATION, http://tcso.org/jailinformation/
[https://perma.cc/5WHS-Y89K].
191. E-mail from Casey Roebuck, supra note 158.

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The lack of clear guidance from federal courts undoubtedly emboldens
county jailers to enact overreaching policies. The ability to exercise First
Amendment rights may not be conditioned on a compulsory waiver, 192 so the
constitutionality of onerous jail preconditions ends up circling back to the same
core question: is there a First Amendment right to speak to people incarcerated
in a county jail? If the answer is ''yes"-as it must be-then journalists'
constitutionally protected access may not be made contingent on accepting
conditions that compel or restrain speech.
V. ACCESS UNLOCKED?

A. Diluting Deference
Though deference to wardens and their experience has long been
recognized by the courts, the very same people deciding whether to grant an
interview are the ones with the greatest interest in suppressing unfavorable
information coming to light. There is a rich tradition of courts interceding in
correctional management when fundamental rights, especially inmate safety,
are at stake. Contrary to the contemporary "hands-off' philosophy that prevails
throughout the federal judiciary, courts historically have not hesitated to
second-guess the management of prisons and jails and, when necessary, to
assume ongoing supervisory roles.
The Louisiana State Penitentiary at Angola (LSP Angola) has a long history
of violent and often deadly conditions. 193 Failed reforms in the late-1800s and
early-1900s left the prison in an unparalleled state of disrepair and unchecked
brutality. 194 Inmates took drastic measures to protest the brutal working
conditions, lack of food, deplorable housing conditions, and prison
mismanagement, with a group of inmates famously slashing their own Achilles
tendons to disable themselves from working on "The Farm." 195 By the 1960s,
stabbings and inmate murders became so common that LSP Angola earned its
infamous nickname "the bloodiest prison in the South."196 Federal courts
192. See G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1077 (6th Cir.
1994) (stating, in a case involving constitutional challenge to state restrictions on exotic dancing, that
"a state actor cannot constitutionally condition the receipt of a benefit, such as a liquor license or an
entertainment permit, on an agreement to refrain from exercising one's constitutional rights, especially
one's right to free expression"); see also Agency for Int'l. Dev. v. All. for Open Soc'y Int'l, Inc., 570
U.S. 205 (2013) (holding that government cannot insist on broad waiver of First Amendment rights
even as a condition of receiving a wholly discretionary grant to which there is no entitlement).
193. See generally History of Angola, ANGOLA MUSEUM AT THE LA. STATE PENITENTIARY,
https://www.angolamuseum.org/history-of-angola [https://perma.cc/YNZ5-62P7].
194. Id
195. Id
196. Id

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mandated reform in the early-1970s, 197 but after these reforms failed, the Fifth
Circuit saw a suit regarding conditions in the prison yet again, in Williams v.
Edwards .198
In Williams, the court heard allegations of prison overcrowding, a lack of
adequate security leaving inmates in danger, an unchecked rape problem,
sanitation and health concerns, and a widespread rat infestation. 199 Although
the court recognized the federal judicial philosophy of minimal intrusion into
the affairs of state prisons, it held that judicial restraint must not encompass
valid constitutional issues, including the inhumane conditions that inmates were
alleging. 20 Finding that the Eighth Amendment prohibition against cruel and
unusual punishment applied to the general conditions of the prison, 201 the court
in Williams delivered an important victory for prison reform, brought to light
and redressed only because the court set aside "deference" and decided to step
m.
Widely publicized as a positive step on the road to prison reform, Williams
inspired other prisoners to speak up and bring suit over the harsh conditions
they faced. 202 Suits like Williams continue to inspire reform even into the
twenty-first century. 203 Unfortunately, not much has changed in some
institutions despite the decades since Williams. For example, the Supreme
Court heard similar issues in Brown v. Plata in 2011. 204 Brown addressed
unsanitary and unsafe conditions in California prisons that violated inmates'
Eighth Amendment right to be free from cruel and unusual punishment. 205 The
evidence showed that overcrowding reduced prisoners' access to basic medical
care and mental health services. 206 The Court ultimately held that a mandated
maximum population was needed to remedy prisoners' constitutional issues. 207
In the setting of county jails, judicial intervention has repeatedly been
required to remedy deficiencies in medical care, access to legal services, and
other basic needs. In New York, the notoriously dangerous and squalid Rikers
Island jail was placed under federal court oversight-and ultimately earmarked

°

197. Id
198. 547 F.2d 1206, 1210 (5th Cir. 1977).
199. Id at 1211.
200. Id at 1212.
201. Id
202. See, e.g., Palmigiano v. Garrahy, 599 F.2d 17 (1st Cir. 1979); Doe v. District of Columbia,
701 F.2d 948 (D.C. Cir. 1983); Birrell v. Brown, 867 F.2d 956 (6th Cir. 1989); Bugge v. Roberts, 430
F. App'x 753 (11th Cir. 2011).
203. Id
204. Brown v. Plata, 563 U.S. 493 (2011).
205. Id at 502.
206. Id at 504.
207. Id at 502.

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for closure208-after a federal civil-rights lawsuit, joined by the U.S. Justice
Department, alleging that inmates were subjected to "an epidemic of brutality"
by guards. 209 In Los Angeles, the nation's largest jail system by occupancy was
placed under the supervision of a court-appointed panel in 2014 as part of a
settlement to a class action lawsuit alleging that guards beat inmates. 210 Over
the past half-century, similar regimes of court-ordered oversight have been
imposed in jails from Boston to Chicago to New Orleans to Phoenix after judges
found unsafe levels of overcrowding, inadequate medical care, or brutality by
jail employees.211 Judicial intervention, in other words, has repeatedly proven
to be necessary because jails allowed conditions to deteriorate to a point of
unconstitutionally cruel and unusual conditions-hardly a resume justifying
unreviewable deference.
To be sure, there is a role for judicial deference when on-the-ground
specialists are performing time-sensitive duties that require individualized,
fact-sensitive judgment calls. Deference is owed when a jail administrator
decides, for instance, that a particular day would be an unsafe day to admit
visitors because the facility is boiling over with violence. But that is different
from saying that courts owe deference to jails' policymaking decisions,
208. Rosie Blunt, Rikers Island: Tales from Inside New York's Notorious Jail, BBC NEWS (Oct.
20, 2019), https://www.bbc.com/news/world-us-canada-50114468 [https://perma.cc/5UPM-AWRR].
209. John Riley, City Agrees to Terms of Rikers Island Pact with Feds, NEWSDAY (June 22,
2015, 11 :32 PM), https://www.newsday.com/news/new-york/city-agrees-to-terms-of-rikers-islandpact-with-feds-1.10569754 [https://perma.cc/P3RU-XNG4].
210. Curtis Skinner, Court-Appointed Panel to Monitor Los Angeles County Jails, REUTERS
(Dec. 17, 2014, 1:20 AM), https://www.reuters.com/article/us-usa-sheriff-california/court-appointedpanel-to-monitor-los-angeles-county-jails-idUSK.BNONOJ320141217
[https://perma.cc/2LPCLQKX].
211. See Inmates of the Suffolk Cnty. Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), ajf'd,
494 F.2d 1196 (1st Cir. 1974), cert. denied, 419 U.S. 977 (1974) (finding widespread constitutional
deficiencies in multiple Boston jails, including rodent infestation, unaddressed fire hazards, failure to
provide physical examinations, limited access to meetings with counsel, and other defects requiring
judicial redress); Steve Schmadke, Cook County Jail Exits Federal Oversight of More Than 40 Years,
CHI. TRIB. (June 12, 2017, 6: 11 PM), https://www.chicagotribune.com/news/breaking/ct-cook-countyjail-consent-decree-20170612-story.html [https://perma.cc/G7FJ-EKVS] (stating that Chicago's jail
was under court oversight since 1974 as a result of documented problems in medical care, detainee
safety, and excessive force and that the jail hospital would remain under judicial oversight); Matt
Sledge, Federal Judge Replaces Lead New Orleans Jail Monitor in Personnel Switch During Grim
Period,
NEW
ORLEANS
ADvoc.
(Nov.
17,
2017,
4:45
PM),
https://www.nola.com/news/courts/article_ 2ee9786 l-7 l 57-5b30-ac0a-6 l ef9705dl Ob.html
[https://perma.cc/73CU-SLNF] (reporting that Orleans Parish jail has been under supervision by a
seven-member, court-ordered panel since 2013); Uriel J. Garcia, Federal Judge Ends 42-Year-Old
Lawsuit Over Maricopa County Inmate Care, ARiz. CENT. REPUBLIC (Oct. 18, 2019, 4:23 PM),
https://www.azcentral.com/story/news/local/phoenix/2019/1 0/l 8/federal-judge-ends-42-year-oldlawsuit-against-maricopa-county-sheriffs-office-over-inmate-care/4024790002/
[https://perma.cc/5YWS-55FP] (reporting that Phoenix jails were under court supervision for more
than forty years resulting from lawsuit over overcrowding and inadequate access to counsel, which
grew to also include insufficient medical and mental-health services).

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particularly where those decisions implicate the fundamental civil liberties not
just of those jailed but also of those in the outside world as well. It is possible
to craft a narrower and less speech-restrictive standard that enables jail
authorities to make situational safety judgments-with adequate factual
support, not speculation-without allowing unfettered discretion to
categorically deny journalists access.
B. Transparency as a Safety Measure

Journalists are often the first to uncover constitutional failings that
correctional institutions work to keep under wraps. 212 Journalists have exposed
systemic issues in correctional facilities that may not have been addressed
otherwise. While restrictions on media access often are justified by invoking
"safety," the ability to call attention to harmful conditions inside correctional
facilities is itself a safety matter.
The internal grievance system within jails is widely perceived to be
ineffective because the employees the inmates are complaining about are often
the same people who process the complaints. 213 Because complaining through
in-house channels is unlikely to produce meaningful change-particularly in
jails, where high turnover means that the institution can simply "wait out" the
complainant-it is imperative as a matter of safety for those held in jail to have
access to external communication channels.
County jails are plagued by violence and overcrowding.214 They are often
understaffed and do not have adequate resources to provide basic support
services up to the standards expected of state prisons. 215 Inadequate medical
212. See, e.g., Anemona Hartocollis, Polk Awards in Journalism Are Announced, Including
for
The
Times,
N.Y.
TIMES
(Feb.
15,
2015),
Three
https://www.nytimes.com/2015/02/16/nyregion/fourteen-george-polk-awards-in-journalism-aregiven-including-three-to-the-times.html [https://perma.cc/QSNT-CTHG] (reporting that three
reporters from the Miami Herald and New York Times shared the prestigious George Polk Award for
investigative reporting for revealing the hidden abuse of prisoners in New York and Miami jails,
prompting the U.S. Justice Department to bring a civil-rights suit against the city of New York).
213. See Blake Ellis & Melanie Hicken, 'Please Help Me Before It's Too Late', CNN (June 25,
2019), https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs/ [https://perma.cc/J8B999KS] (reporting on instances of preventable deaths throughout the country attributable to
inadequacies of privatized medical services in county jails); Kevin Rector, City Jail Grievance System
Broken, Inmates, Advocates Say, BALTIMORE SUN (July 6, 2013, 4:59 PM),
https://www.baltimoresun.com/maryland/baltimore-city/bs-md-bcdc-grievances-20130706story.html [https://perma.cc/94LX-LAT6] (quoting inmate-rights lawyer calling grievance process in
Baltimore jail "a complete joke and fiasco," because complaints of serious wrongdoing go unaddressed
and delay inmates' ability to proceed to court by imposing administrative exhaustion hurdles).
214. Jason Pohl & Ryan Gabrielson, There Has Been an Explosion ofHomicides in California's
Why.,
PROPuBLICA
(June
13,
2019,
8:00
AM),
County
Jails.
Here's
https://www.propublica.org/article/explosion-of-homicides-in-californias-county-jails-heres-why
[https://perma.cc/UYP9-W3DT].
215. Id

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and mental health treatment is a habitual problem,216 predictably helping fuel a
troubling rate of suicides. 217 Indeed, people in jail commit suicide at a rate four
times higher than that of the general public, and suicide is the leading reason
people die in jail, accounting for thirty-one percent of fatalities. 218 A 2018
review of public records by Norfolk's Virginian-Pilot newspaper documented
that 404 people diagnosed with mental illness had died in jail since 2010, "many
under horrific circumstances," though the number is almost certainly far higher
because of shortcomings in federal recordkeeping. 219 Unpopular with taxpayers
and elected officials, underfunded jails often lack funding to repair their
facilities, such as in Nowata County, Oklahoma, where "holes in the jail's
walls, black mold, loose electrical wires, fire hazards and surfaces inmates
could use to hurt themselves and others" create health hazards for inmates and
employees. 22 Four Nowata County Jail employees were treated for suspected
carbon monoxide poisoning as a result of deteriorating jail conditions. 221
Those behind bars are uniquely vulnerable to harm and exploitation because
of the inherent power imbalance that comes with being held in custody. Inmate
complaints about conditions, even those putting their own health at risk, are
often shrugged off by those in authority. 222 Reporters with Boston-based
WBUR found that at least one-third of the inmates who died in custody at the
Worcester County, Massachusetts jail had brought up allegations of poor
medical care before their deaths. 223 Even federal officials were rebuffed in their
oversight efforts; the county repeatedly denied federal consultants access to the
jail's mortality records, citing attorney-client privilege in pending litigation. 224
Because of such cases, the director of the ACLU's National Prison Project calls

°

216. See Steve Coll, The Jail Health-Care Crisis, NEW YORKER (Mar. 4, 2019),
https://www.newyorker.com/magazine/2019/03/04/the-jail-health-care-crisis [https://perma.cc/6762NWQP] (observing that many jails are too small and rural to hire qualified in-house medical staff and
struggle to maintain safety when detainees are experiencing withdrawal from opioids).
217. Maurice Chammah & Tom Meagher, Why Jails Have More Suicides than Prisons,
MARSHALL PROJECT (Aug. 4, 2015, 10:00 AM), https://www.themarshallproject.org/2015/08/04/whyjails-have-more-suicides-than-prisons [https://perma.cc/8SJF-V2EG].
218. Id
219. Gary A. Harki, Horrific Deaths, Brutal Treatment: Mental Illness in America's Jails,
VIRGINIAN-PILOT (Aug. 23, 2018, 11:31 AM), https://www.pilotonline.com/projects/jailcrisis/article_5ba8al 12-974e-1 le8-bal 7-b734814fl 4db.html-2 [https://perma.cc/GJ5J-8HCQ].
220. Quinton Chandler, Sheriff Revolt Over County Jail Conditions Shines Spotlight on Low
Funding,
STATEIMPACT
OKLA.
(Apr.
11,
2019,
3:58
PM),
https:// stateimpact.npr.org/oklahoma/2019/04/11/sheriff-revolt-over-county-jail-conditions-shinesspotlight-on-low-funding/ [https://perma.cc/R5BG-NNDD].
221. Id
222. Christine Willmsen & Beth Healy, When Inmates Die of Poor Medical Care, Jails Often
Keep It Secret, WBUR (Mar. 23, 2020), https://www.wbur.org/investigations/2020/03/23/county-jaildeaths-sheriffs-watch [https://perma.cc/5MFR-R6WJ].
223. Id
224. Id

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jails "perhaps the least accountable part of the government," adding that the
combination of a lack of transparency and oversight with a marginalized and
unpopular population is "a recipe for neglect and mistreatment."225 The
nonprofit Marshall Project interviewed more than fifty former inmates of
Missouri's St. Francois County Jail for a searing expose on abuse and neglectevocatively titled "Your Local Jail May Be A House of Horrors"-which
disclosed years' worth of filthy conditions, denial of medical treatment, and
beatings and sexual assaults of prisoners by employees in a county that has reelected its sheriff every four years since 1992.226 Observing that fewer than
half of states maintain a state oversight body over jails, reporter Maurice
Chammah wrote: "America's 3,000-plus county jails ... receive far less
scrutiny than state and federal prisons, even as they have become catalysts for
the spread of COVID-19."227
The federal Death in Custody Reporting Act requires the government to
collect information on the more than one thousand inmates who die in jails each
year. 228 However, compliance is mostly voluntary, and predictably, without
meaningful enforcement mechanisms, the data is spotty.229 Death rates in jails
increased by nearly thirty-five percent between 2008 and 2019, with many of
these deaths going unreported. 230 The majority of the deceased had not been
found guilty, many of them not even reaching the charging stage of the criminal
process. 231 Statistics on these deaths are often withheld, and reporting to many
225. Id
226. Maurice Chammah, Your Local Jail May Be a House of Horrors, MARSHALL PROJECT
(July 29, 2020), https://www.themarshallproject.org/2020/07/29/your-local-jail-may-be-a-house-ofhorrors [https://perma.cc/LYH5-BR24]. The article's subhead was equally evocative: "But you
probably wouldn't know it, because sheriffs rule them with little accountability." Id
227. Id; see also Willmsen & Healy, supra note 222; MICHELE DEITCH, ALYCIA WELCH,
WILLIAM BUCKNALL & DESTINY MORENO, COVID AND CORRECTIONS: A PROFILE OF COVID
DEATHS
IN
CUSTODY
IN
TEXAS
(2020),
https://repositories.lib.utexas.edu/bitstream/handle/2 l 52/83635/Profile%20of"/o20COVID%20deaths
%20in%20custody.pdf (stating that eighty percent of those who died from COVlD-19 in Texas jails
were being held pretrial in a dangerous environment despite not being convicted of a crime).
228. 34 U.S.C.A. § 12104 (West 2000); see also Ethan Corey, How the Federal Government
Lost Track ofDeaths in Custody, APPEAL (June 24, 2020), https://theappeal.org/police-prison-deathsdata/ [https://perma.cc/7EPW-6J4R].
229. Corey, supra note 228.
230. Peter Eisler, Linda So, Jason Szep, Grant Smith & Ned Parker, Why 4,998 Died in U.S.
Jails Without Getting Their Day in Court, REUTERS (Oct. 16, 2020, 11:00 AM),
https://www.reuters.com/investigates/special-report/usa-jails-deaths/ [https://perma.cc/3GJM-PRRK.].
231. See id; see also Jerusalem Demsas, 80 Percent of Those Who Died of Covid-19 in Texas
County Jails Were Never Convicted of a Crime, Vox (Nov. 12, 2020, 2:50 PM),
https://www.vox.com/2020/11/12/21562278/jails-prisons-texas-covid-19-coronavirus-crimeprisoners-death [https://perma.cc/7QEX-2YTC] (citing findings of University of Texas researchers
who examined 231 deaths in custody between March and October 2020). It is worth noting that people
who may not have committed any crime and may pose no danger to society are being placed at

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federal oversight groups within the Department of Justice remains optional,
with seventeen states having no oversight systems available even for optional
reporting. 232
Independent monitoring has long been recognized as a way of addressing
unsafe or abusive conditions in penal institutions. As far back as the nineteenth
century, New York authorities were admitting members of a citizen oversight
group to the maximum-security Sing Sing Correctional Facility as a check on
corruption and cruelty.233 Despite the contemporary judicial perception of jails
and prisons as impregnable to outsiders, centuries of history in the United States
and abroad establish that, as one researcher has observed, "Prisons have
traditionally been open to the public, both in England and America, and this
tradition of openness has led to the exposure of prison abuses."234
Some courts have recognized the value of uninhibited inmate
whistleblowing in the context of cases challenging restrictions on mailings. In
Burton v. Foltz, the court enjoined a prison from inspecting a segregated
inmate's correspondence with the media. 235 The court found that residents in
segregation, living with more severe restrictions than the general population,
were more likely to criticize the conditions of the facility than the general
population. 236 Indeed, the court observed, "The primary reason [inmates]
communicate with the press is to criticize institutional conditions."237
The lack of clear constitutional protection for newsgathering in penal
institutions puts journalists in needless peril. Consider the case of Tallahassee
Democrat reporter Karen Olson, who during a 1988 visit to the Leon County
Jail encountered an inmate who offered her information alleging prisoner abuse

heightened risk of contracting a deadly virus specifically because of the decision to hold them in jail
before trial and that the imposition of prohibitively unaffordable cash bonds is now being reconsidered
in many jurisdictions. See, e.g., Angie Jackson, New Washtenaw County Prosecutor Will Stop Seeking
DETROIT
FREE
PRESS
(Jan.
4,
2021,
9:55
AM),
Cash
Bail,
https://www.freep.com/story/news/local/michigan/2021/0l/04/cash-bail-end-michigan-prosecutorwashtenaw-county/4108736001/ [https://perma.cc/T5XJ-JENM] (quoting newly elected Michigan
prosecutor promising not to seek cash bail because of the risk of jailing people because they are poor);
Alexandra Meeks & Madeline Holcombe, New Los Angeles DA Announces End to Cash Bail, the
Death Penalty and Trying Children as Adults, CNN (Dec. 8, 2020, 5:05 AM),
https://www.cnn.com/2020/12/08/us/los-angeles-da-criminal-justice-reform/index.html
[https://perma.cc/DL6N-GG9T] (reporting that newly inaugurated Los Angeles district attorney
opened his term by declaring his office would no longer seek cash bail).
232. Eisler, So, Szep, Smith & Parker, supra note 230.
233. Leonard G. Leverson, Constitutional Limits on the Power to Restrict Access to Prisons: An
Historical Re-examination, 18 HARV. C.R.-C.L. L. Rev. 409,420 (1983).
234. Id at 428.
235. Burton v. Foltz, 599 F. Supp. 114, 115 (E.D. Mich. 1984).
236. Id at 117.
237. Id.

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and substandard medical care. 238 Olson asked the inmate to write down his
complaints so she could follow up, and when she attempted to leave the jail
with the inmate's handwritten notes, she was confronted by jailers who accused
her of possessing unauthorized materials. 239 When Olson refused to surrender
the notes, she was arrested and charged with possession of "contraband
articles," a third-degree felony carrying a possible five-year prison sentence. 240
Olson challenged the application of the contraband law to journalists carrying
information provided by sources, but---citing Houchins-a state appeals court
found no constitutional violation: "[T]he activity in question here, the receipt
by a newspaper reporter of an unauthorized communication from a prison
inmate, is simply not entitled to first amendment protection."241 The takeaway
from Olson's case-that jails have "virtually plenary authority" to interdict
communications by inmates, even with reporters242-would be true nowhere
else in the United States. Even when journalists receive leaked classified
documents from people who have stolen them, some degree of First
Amendment protection comes into play. 243 The outcome in Olson's case-that
no First Amendment interests whatsoever are implicated when journalists
receive ''unauthorized communication" from inmates-puts penal institutions
in an extreme, and lonely, category of government institutions that can make
themselves impervious to whistleblowing.
C. The Special Access Case for Jails

While jails and prisons are often grouped together in constitutional
jurisprudence, jails are factually and legally distinct from prisons in meaningful
ways. Those distinctions provide an even stronger basis for arguing for a First
Amendment right of access for news organizations.

238. State v. Olson, 586 So. 2d 1239, 1241 n.1 (Fla. Dist. Ct. App. 1991).
239. Id at 1241.
240. Id at 1241 n.3.
241. Id at 1244.
242. Id at 1243.
243. See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (finding that First
Amendment precluded enjoining newspaper from publishing classified Defense Department
documents that a Pentagon contractor provided, without authorization, to a reporter); see also Bartnicki
v. Vopper, 532 U.S. 514, 527 (2001) (concluding that the First Amendment foreclosed criminally
prosecuting a radio journalist for receiving a tape recording unlawfully made by an eavesdropper and
then broadcasting its contents); David E. Pozen, The Leaky Leviathan: Why Government Condemns
and Condones Unlawful Disclosures of Information, 127 HARV. L. REV. 512, 525 (2013) ("As
compared to the legal vulnerability of their government sources, journalists and other private actors
who publish leaked information appear to occupy a privileged position.").

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i. Access to Interviews with Jail Inmates Poses Fewer Dangers
First, jail populations significantly differ from prison populations, first and
foremost because jails are for short-term sentences or pretrial detention.244 By
one estimate, two-thirds of those in jail at any given time are pretrial detainees,
not sentenced inmates. 245 Many of these people will be found not guilty or have
their charges dropped before trial. 246 Because so many people in jail have either
committed minor nuisance offenses or will never be convicted at all,
"rehabilitation" cannot justify cutting them off from communication with
journalists in the same way that rehabilitative interests have been cited in the
context of the very different populations in state and federal prison.
While jail authorities might argue that the short average stay means the loss
of interviewing opportunities is an immaterial and fleeting deprivation, that
argument runs into both legal and practical problems. Legally, there is no such
thing as a "small" deprivation where First Amendment rights are concemed. 247
That access to the news media might be cut off for "only" a matter of weeks is
less persuasive when those weeks encompass the inmate's entire incarceration,
meaning there is no likelihood of enlisting help to improve conditions while
improvement still matters to the speaker (for instance, an inmate confined in
quarters where an infectious disease like COVID-19 is spreading). 248 It will
take an unusually motivated speaker to continue pursuing improvements in
conditions to which the speaker no longer anticipates being subject.
Additionally, the typically brief stay means that an exchange of written letters
via U.S. Mail is less likely to produce effective results than it might be in prison.

244. Jail Statistics, supra note 13.
245. See U.S. Jail Population Has Tripled Since the 1980s, Fueling Inequality, EQUAL JUST.
INITIATIVE
(June
6,
2017),
https://eji.org/news/jail-growth-fuels-racial-inequality/
[https://perma.cc/A39Y-GST4] ("Two-thirds of the 720,000 people in American jails on a given day
have not been convicted and are legally innocent; the rest are serving sentences usually less than a year
long, most often for misdemeanors.").
246. See, e.g., HUMAN RIGHTS WATCH, "NOT IN IT FOR JUSTICE": How CALIFORNIA'S
DETENTION
AND
BAIL
SYSTEM
UNFAIRLY
PuNISHES
POOR
PEOPLE
(2017),
https://www.hrw.org/sites/default/files/report_pdf/usbail0417_web_O.pdf [https://perma.cc/HGM65VEQ].
247. See Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981) ("It is well established that the loss of
first amendment freedoms constitutes irreparable injury.").
248. See Noah Goldberg, Inmate Thrown Into Solitary Confinement for Speaking to the Daily
News About COVID-19 Conditions at Brooklyn Jail: Lawyers, N. Y. DAILY NEWS (Dec. 21, 2020, 7:00
AM), https://www.nydailynews.com/new-york/ny-inmate-brooklyn-mdc-solitary-confinement-felixcollazo-20201221-2dmfw5xlfvenzdftpk3tjb3x2y-story.html
[https://perma.cc/8T6X-MMBQ]
(detailing how an inmate in a Brooklyn federal jail was throw into solitary confinement in retaliation
for speaking out about the lack of medical care and preventative measures being taken in a unit hit hard
by COVID-19, his lawyer has not heard from him despite scheduled phone calls, and the federal Bureau
of Prisons declined to comment on any potential retaliatory treatment).

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The dynamics of the jail population lessens the oft-stated concerns of prison
administrators that inmates will use media access to acquire "big wheel"
celebrity influence over other inmates, that they will profiteer off of their
crimes, or that they will share gruesome details of violent crimes traumatic to
survivors. 249 Many people occupying county jail beds are accused of offenses
of no public significance, such as petty theft or public intoxication-and almost
none held for any meaningful time are celebrities, who even if arrested, will
have the means to obtain speedy release on bond. If institutions are concerned
about the rare instance in which a notorious inmate may attempt to capitalize in
unseemly ways, narrower alternatives are available other than forbidding all
interviews. For instance, forty-five states and the federal government have
implemented some form of law to prevent felons from profiting unduly by
selling the rights to their stories-popularly known as "Son of Sam" laws for
the nickname of serial killer David Berkowitz, whose case inspired the laws. 250
Many states include inmate interviews in their "Son of Sam" laws if there is
potential for the inmate to profit from the media attention. 251 These laws
illustrate that it is possible to craft more speech-permissive general policies
while addressing targeted remedies to the one-in-a-million outlier cases (none
of which will occur in county jail, as a jail sentence affords no time to publish
a book).
However questionable the "big wheel" concern may be252-prisons already
deal with well-known organized-crime figures, politicians, gang leaders, and
other influential inmates-it is especially farfetched in the context of a county
jail where inmates are coming and going within a matter of days. It will be the
rare jail inmate who, without already having attained real-world fame, is
deluged with so many interviews within a weeks-long stay that the inmate can
attain "big wheel" status and use that status destructively. First Amendment
249. See Bernstein, supra note 96, at 142 (explaining that prison authorities have justified
restraints on interviews by virtue of ''the potential hann to victims and their families from seeing the
perpetrator on television").
250. CAL. CN. CODE§ 2225(b)(l) (West 2021); David L. Hudson Jr., 'Son of Sam' Laws,
FREEDOM F. INST. (Mar. 2012), https://www.freedomforuminstitute.org/first-amendmentcenter/topics/freedom-of-speech-2/arts-first-amendment-overview/son-of-sam-laws/
[https://perma.cc/B94H-5G5B].
251. See Bernstein, supra note 96, at 131, 135 (citing claims that interviews increase the sales of
books or other merchandise created by, or featuring the likenesses of, well-known inmates, including
murderous cult leader Charles Manson and funk artist Rick James convicted of kidnapping, torture,
and sexual assault); Jack Whatley, The Troubling Life of Funk Pioneer Rick James, FAR OUT,
https://faroutmagazine.co.uk/rick-james-profile-rape-torture-cocaine/ (last visited Apr. 25, 2021)
(Rick James was convicted of kidnapping, torture, and sexual assault).
252. See Jordan v. Pugh, 504 F. Supp. 2d 1109, 1113 (D. Colo. 2007) (citing expert testimony
from a retired warden and professor that "the 'big wheel' theory had been advanced in corrections
literature during the 1970s, but since then has been largely abandoned by correction officials" because
there is no evidence that being cited in the media creates a dangerous level of influence).

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standards are sufficiently flexible to accommodate a decision to selectively
deny media access to that rare ''jailhouse celebrity" without also denying access
to everyone else.
Additionally, the danger of an interview that discloses details traumatic to
victims is diminished in the jail setting. As a practical matter, even if a person
accused of luridly sensational crimes were being held in county jail to await
trial, that person would be unlikely to confess the details of the crimes while
still contesting the charges. The jail population consists largely of people
sentenced for minor, victimless crimes or staying for a matter of days postarrest, after which they are free to give as many "traumatizing" interviews as
they wish. Preventing all jail inmates from speaking to journalists to avoid the
exceptionally rare "traumatic" interview is a classically overbroad response.
ii. Jailers May Not Inflict "Punishment" for Crimes Yet to Be Adjudicated

The Constitution forbids imposing conditions on unconvicted pretrial
detainees that constitute "punishment."253 In discussing what constitutes
punishment of a detainee, the Supreme Court looked to whether a deprivation
of rights, such as the deprivation of channels of communication, "appears
excessive" and if "less restrictive alternatives" are available. 254 These courts,
by stating that strict limits on communication are still adequate and giving
broad guidelines for what constitutes an excessive deprivation of a right, have
left little in the way of policies that could actually be deemed too restrictive.
Reasonable restraints of speech and other rights in jails apply to pretrial
detainees, although they have not been convicted of anything. 255 To ensure
their presence at trial, some unconvicted persons can be incarcerated before
they have been adjudicated. 256 A person in jail for pretrial detention has not
been adjudicated but has a ''judicial determination of probable cause as a
prerequisite to [the] extended restraint of [his] liberty following arrest. " 257
Those who are detained before trial are subject to the restrictions of the
detention facility as long as the restrictions "do not amount to punishment, or
otherwise violate the Constitution."258
The loss of some rights is inherent in confinement in any type of
correctional institution. However, under the Due Process Clause, detainees
cannot be punished before the adjudication of guilt. 259 "The fact that such
253.
254.
255.
256.
257.
258.
259.

Bell v. Wolfish, 441 U.S. 520,535 (1979).
Id at 539; id. at 565 (Marshall, J., dissenting).
Id at 527-28 (majority opinion).
Id at 523.
Id at 536 (alteration in original) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)).
Id at 536--37.
Id at 535.

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detention interferes with the detainee's understandable desire to live as
comfortably as possible and with as little restraint as possible during
confinement does not convert the conditions or restrictions of detention into
'punishment. "'260 Therefore, a test to determine whether an act is punitive must
be established to decide the constitutionality of limitations on the speech of
pretrial detainees.
The Court in Bell construed a factor test originally set out in Kennedy v.
Mendoza-Martinez, traditionally applied to determine if an act of the
government constitutes punishment. 261 In Kennedy, the Court looked at the
following factors:
Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional
aims of punishment-retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an
alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation
to the alternative purpose assigned. 262
Absent any showing of an express intention to punish the detainee, the
determination will tum on the purpose of the restriction and whether it appears
to be excessive. 263 Restraints that are reasonably related to the facility's
interests in security and order do not, without more, qualify as unconstitutional
punishment, even if they are restrictions that the detainee would not have had
to face had they been released into the community to await trial. 264
While no court has apparently confronted whether a loss of interviewing
opportunities is "punitive," a somewhat analogous "flip-side" claim arose in the
case of infamous Arizona sheriff Joe Arpaio' s attempts to humiliate inmates by
live streaming webcams from the county jail.265 Pretrial detainees challenged
the 24/7 video stream as an invasion of their constitutional rights, and the Ninth
Circuit agreed. 266 The court found that being placed on public display
260. Id at 537.
261. Id at 538 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168--69 (1963)).
262. Kennedy, 372 U.S. at 168--69 (footnotes omitted).
263. Id
264. Bell, 441 U.S. at 540.
265. Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004). Arpaio became notorious for his
disregard for the welfare of suspects and detainees, even incurring a criminal contempt conviction for
defying a federal judge's order to refrain from using illegal profiling tactics in traffic stops. Colin
Dwyer, Ex-Sheriff Joe Arpaio Convicted of Criminal Contempt, NPR (July 31, 2017, 4:08 PM),
https://www.npr.org/sections/thetwo-way/2017/07/31/540629884/ex-sheriff-joe-arpaio-convicted-ofcriminal-contempt [https://perma.cc/62MD-5AWW].
266. Demery, 378 F.3d at 1033.

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"constitutes a level of humiliation that almost anyone would regard as
profoundly undesirable and strive to avoid" and that public viewing served no
legitimate safety objective because guards already had access to security
camera images enabling them to keep watch over the jail.267 While the
Maricopa County jail case is in no way conclusive that loss of the opportunity
to give an interview is "punitive" for due process purposes, the case at least
stands for the proposition that pretrial detainees have some meaningful
quantum of constitutional protection (in that case, privacy) and that when
fundamental rights are taken away, courts will not always defer uncritically to
the government's proffered rationale. 268
iii. Jails Are Rarely Administered by Experts Owed Ironclad Deference

The pervasive notion that prison wardens are owed unquestioned deference
to their unique expertise in managing correctional institutions simply does not
match the reality that, in many jurisdictions, county jails are run by elected
officials who may have only rudimentary training. While a state or federal
correctional agency will likely be staffed by professionals selected in a meritbased hiring process, county jail policies are almost always made by locally
elected sheriffs, who can qualify for office by meeting minimal standards. 269
State statutes commonly require no more than a high school education and a
record clear of serious criminal convictions to serve as county sheriff. 270 Under
Texas law, for instance, a sheriff need only be twenty-one years of age with a
high school diploma or equivalency certificate and no record of felony
convictions. 271 In California, if the candidate has four years oflaw enforcement
experience (none of which must involve jail administration), only a high school
diploma or a GED is needed to qualify for candidacy.272 In Kentucky, where
267. Id at 1029-30.
268. See Ian Wood, Note, An Unreasonable Online Search: How a Sheriff's Webcams
Strengthened Fourth Amendment Privacy Rights ofPretrial Detainees, 35 GOLDEN GATE U. L. REV.
1, 21-24 (2005) (describing how the Demery majority discounted the government's stated safety and
deterrence justifications).
269. See, e.g., MD. CONST. art. N, § 44 (stating must be twenty-five years old and have been a
resident of the state for five years); MONT. CODE ANN.§ 7-32-2133 (2019) (stating must be eighteen
years old, have a high school diploma, and have not committed a crime for which they could have been
imprisoned); N.J. STAT. ANN. § 40A:9-94 (2020) (stating must be an American citizen and a county
resident for three years). Although there appears to be no comprehensive database or recent survey
data specifying the qualifications to become a sheriff in every jurisdiction, a 1984 survey of more than
1,500 sheriffs nationwide found that eighty-one percent of sheriffs did not have a college degree and
that forty-four percent reported no education beyond high school. Roger Handberg, A Portrait of
County Sheriffs in the United States, 9 AM. J. CRIM. JUST. 79, 79-87 (1984),
https://doi.org/10.1007/BF03373757 [https://perma.cc/E6Z7-BDNG].
270. Id
271. TEX. Gov'T CODE ANN.§ 85.0011 (West 2019).
272. CAL. ELEC. CODE ANN. § 24004.3 (LexisNexis 2020).

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"jailer" is a separately elected office from sheriff, candidates need only be
twenty-four years of age and satisfy minimal residency requirements. 273 It is
eminently possible to attain the position of making policy for the county jail
without ever having worked a day in a jail.
This position comes with great power and great potential for abuse. Most
states have elected sheriffs, with the exception of only Alaska, Hawaii, and
Connecticut (and in a few jurisdictions within Colorado and Florida). 274 Since
municipally elected sheriffs answer only to voters, they often enjoy nearly
unchecked control over county law enforcement, jails, and the lucrative
contracts that come with running the jail system. 275 This combination of
minimal qualifications and unchecked power opens up obvious potential for
abuse.
State and federal prison policies are subject to multiple layers of oversight
and accountability in ways that county jail policies are not. State Departments
of Corrections operate under the supervision of the governor, the state
legislature, and often an oversight board of gubernatorial appointees. 276 A
"rogue" warden or corrections commissioner who made an indefensible policy
choice could be held accountable by any of these supervisory authorities. 277
Few such safeguards exist with county sheriffs. In a 2019 series ofinvestigative
reports, Charleston's Post and Courier described how state law "hands sheriffs
a license to operate as if they're above the law" by providing few checks on
their authority, leading to decades' worth of misbehavior and scandal. 278 The
reporters quoted a former deputy sheriffs stinging indictment of the lack of
oversight: "There's a tremendous opportunity for criminal activity .... You
have access to jail inmates, and you can use their labor. You have access to
seized money and drugs. And everyone is obedient because they know they
can get fired if they question anything you do."279 As dramatized in Gilbert

273. R.G. Dunlop, Meet the Man Who Took Grant County Jail from Bad to Worse, KY. CTR.
F0RlNVESTIGATIVE REPORTING (Oct. 7, 2015), https://kycir.org/2015/10/07/meet-the-man-who-tookgrant-county-jail-from-bad-to-worse/ [https://perma.ccND7U-K36Y].
NAT'L
SHERIFFS'
ASS'N,
https://www.sheriffs.org/about-nsa/faq
274. FAQ,
[https://perma.cc/ZWV7-23CV]; Office of Sheriff State-by-State Elections Information, NAT'L
SHERIFFS' Ass'N, https://www.sheriffs.org/sites/default/files/uploads/documents/GovAffairs/Stateby-State%20E1ection%20Chart%20updated%2008.13.15.pdf [https://perma.cc/8BPS-4F3H].
275. Walt Bogdanich & Grace Ashford, An Alabama Sheriff, a Mystery Check and a Blogger
Who Cried Foul, N. Y. TIMES (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/us/ana-franklinalabama-sheriff.html [https://perma.cc/YH8H-PQ6B].
276. Michele Deitch, Independent Correctional Oversight Mechanisms Across the United
States: A 50-State Inventory, 30 PACE L. REV. 1754 (2010) (extensive review of corrections oversight
bodies).
277. See generally id
278. Bartelme & Cranney, supra note 16.
279. Id

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King's Pulitzer Prize-winning account of racist justice in 1950s central Florida,
Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of
a New America, sheriffs can keep their jobs for decades after engaging in
criminal wrongdoing that would land other public officials in the
unemployment line, if not prison.280 If the courts refuse to exercise oversight,
there is an excellent chance that no one else will.
D. No Way Out: Jail Inmates' Limited Communication Options

Courts have justified restricting face-to-face interaction between journalists
and inmates by finding that inmates have adequate means of getting a message
to an outside audience, which is all that the First Amendment requires. 281 The
means need not be the most effective or the ones that the inmate (or journalist)
might prefer, so long as they satisfy some baseline of constitutional adequacy.
The cases setting the standard for prisoners' right to communicate with the
news media-Pell, Saxbe, and Houchins-are all creatures of the 1970s, and
communication options have changed enough to justify revisiting decades-old
assumptions. This is doubly so in county jails, where communication
alternatives are especially limited.
Even mailing a letter to a news organization may be beyond the reach of
some jail inmates. Dozens of institutions around the country have attemptedwith mixed results-to limit outgoing correspondence to postcards, enabling
jailers to easily review the content of each message. 282 Courts are split on
whether it is permissible to limit jail inmates to nothing more than a few
sentences on an unsecured card. 283 Accordingly, in some jurisdictions, it is
regarded as constitutional to allow inmates to correspond with the outside world
by way of postcards only.

280. See generally GILBERT KING, DEVIL IN THE GROVE: THURGOOD MARSHALL, THE
GROVELAND BOYS, AND THE DAWN OF A NEW AMERICA (2012) (telling story of murderous Klansman
Willis McCall, who served seven terms as sheriff of Lake County, Florida, surviving repeated threats
by governors to suspend him from office for complicity in racial violence).
281. See Pell v. Procunier, 417 U.S. 817, 823-25 (1974) (finding that "the alternative means of
communication permitted under the regulations with persons outside the prison," including mailing
letters and passing messages through visiting family members, counsel, and clergy, was a factor
making a prison restriction on media interviews more defensible).
282. See Leah Sakala, Postcard-Only Mail Policies in Jail, PRISON POL'Y INITIATIVE (Feb. 7,
2013), https://www.prisonpolicy.org/postcards/report.html#_ ftnref22 [https://perma.cc/T4RJ-E4HP].
283. See Cox v. Denning, No. 12-02571-DJW, 2014 WL 4843951, at *15-16, 23 (D. Kan. Sept.
29, 2014) (collecting and analyzing cases applying Turner factors to jails' postcard policies and
concluding that Kansas jail's policy was unconstitutional because it was inadequately justified by
safety concerns and left inmates with inadequate alternative communication channels); see also
Bennett v. Langford, No. 4:18-CV-0011-HLM-WEJ, 2019 WL 4248897, at *4 (N.D. Ga. Jan. 31,
2019) (concluding that no clearly established law counsels that a postcard-only jail policy is
unconstitutional).

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One communication option for those behind bars is telephone callsthough within jails, that alternative can come at an exorbitant cost. A 2019
study by the nonprofit Prison Policy Initiative found that jails charged as much
as fifty times the per-minute rate for a phone call as the prisons within their
states. 284 On average, the report found, a call from a jail costs three times as
much as the same length call from within a prison. 285 In Michigan, for instance,
a fifteen-minute call that would cost $2.40 if made from a state prison would
cost $12.03 if made from the average county jail and depending on the jail,
could cost as much as $22.56.286 Considering how many people are
incarcerated in county jail for what might be described as offenses of povertybouncing checks, inability to pay traffic fines, and so on287-a $22 telephone
call is a prohibitively costly luxury.
While supportive friends and family members can send money to
incarcerated people, that too comes at a high cost. JPay, the leading system for
electronic money transfers in the correctional system, is widely criticized for its
high service charges. 288 Some inmates' families pay transfer fees as high as
forty-five percent when sending money to their loved ones through JPay. 289 The
expense of phone calls can leave prisoners forced to choose between speaking
with the outside world and purchasing basic toiletries, which often are not
provided behind bars and must be bought in the commissary.290 The idea that
a jail inmate with no prior acquaintance with the news media or with any
particular journalists will begin speculatively picking up the telephone in search
of a sympathetic news outlet at an expense of several dollars per call seems
fanciful for all but an elite handful of inmates.
Even e-mails, when inmates are allowed to access them, come at a price.
To send an e-mail, an inmate must purchase virtual "stamps," with the price
284. Peter Wagner & Alexi Jones, State ofPhone Justice: Local Jails, State Prisons and Private
Phone
Providers,
PRISON
POL'Y
INITIATIVE
(Feb.
2019),
https://www.prisonpolicy.org/phones/state_ of_phonejustice.html [https://perma.cc/KMJ5-5KKM].
285. Id
286. Id
287. See ALEXANDRA NATAPOFF, PuNISHMENT WITHOUT CRIME 115 (2018) ("[M]any lowlevel crimes are crimes of poverty: they punish people for being unable to afford car insurance,
housing, or child care by making it a crime to drive without insurance, sleep in a public place, or leave
a child briefly unattended.").
288. Ariel Schwartz, Here's the Real Story Behind the Apple ofPrison Tech, Bus. INSIDER (July
29, 2015, 8:18 AM), https://www.businessinsider.com/apple-of-prison-techs-real-story-2015-7
[https://perma.cc/EWS2-PAV6].
289. Eleanor B. Fox & Daniel Wagner, Time is Money: Who's Making a Buck Off Prisoners'
Families?, CTR. FORPuB. INTEGRITY (Sept. 30, 2014), https://publicintegrity.org/inequality-povertyopportunity/time-is-money-whos-making-a-buck-off-prisoners-families/
[https://perma.cc/U8JFU4U2]; see also Johnson, supra note 90, at 288-89 (describing how prisons have partnered with JPay
to offer paid email services).
290. Johnson, supra note 90, at 290.

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fixed by the institution. 291 At the Texas Department of Criminal Justice's Byrd
Unit, twenty stamps sell for $9.80. 292 While this may not seem like an
astronomical price to those outside, being charged for every e-mail can mean
sacrificing the purchase of basic hygiene items.
Phone calls and e-mails are substantial alternate means of communication,
but this does not mean that they are always accessible or adequate because of
the paywall that comes with them. Still, multiple jurisdictions have held that
they are constitutionally adequate alternatives to in-person interviews or
visitation by the press. 293 Reliance on these alternative means of satisfying
inmates' need for communication with the outside world is complicated,
however, by the fact that courts have declined to find a constitutional
entitlement either to telephone access or to e-mail access. 294 In other words, the
alternatives that are cited to justify withholding access to news media
interviews are themselves precarious because there is no constitutional
guarantee that these alternatives cannot be taken away. 295
Concluding that inmates need no direct access to journalists because they
can relay their concerns to others-family visitors, clergy, or counselpresumes that those alternatives exist and will be effective. For people who are
estranged from their families or have moved away from their family's home
base, including immigrants whose families are overseas, this "alternative" is no
alternative at all. This is doubly the case for people whose families are in the
country without documentation and will understandably hesitate to contact
government authorities to complain about jail conditions, for fear of attracting
adverse attention. It is a dangerous oversimplification for courts to assume,
categorically, that effective messengers other than journalists will always exist.
Additionally, one channel of communication that has been recognized as a
viable alternative for people sentenced to prison-sending messages through
legal counsel296-is unlikely to be accessible for those in county jail. As a
291. Schwartz, supra note 288.
292. Id
293. See generally Smith v. Coughlin, 748 F.2d 783 (2d Cir. 1984); Cardoza v. Fair, No. 833977-T, 1988 U.S. Dist. LEXIS 2629 (D. Mass. Mar. 28, 1988); Hatch v. Lappin, 660 F. Supp. 2d 104
(D. Mass. 2009).
294. See Johnson, supra note 90, at 299-301 (noting that courts are split on whether inmates
have a First Amendment right to make phone calls and that none has yet been willing to extend that
entitlement to cover emails).
295. Additionally, inmates are aware that their phone calls can be recorded and monitored, so
they understandably may hesitate to engage in criticism of prison employees on an unsecured phone
line for fear of retaliation. See Bernstein, supra note 96, at 140 (discussing California prisons' practice
of monitoring and enforcing ten-minute time limits on inmate phone calls).
296. See Pell v. Procunier, 417 U.S. 817, 825 (1974) (identifying visits from family members,
clergy, and attorneys as methods for communicating a message to the outside world that obviates the
need for interviews with the news media).

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practical matter, a person serving a thirty-day sentence for driving without
insurance or bouncing a check is unlikely to be visited by counsel; indeed, the
lack of counsel may be why people who are accused of insignificant offenses
end up in jail. Moreover, the Supreme Court has recognized no constitutional
entitlement to court-appointed counsel for people facing misdemeanor charges
that do not carry a jail sentence. 297 So a pretrial detainee who is charged with a
minor misdemeanor, such as disorderly conduct or reckless driving, has no
assurance of being able to meet with an attorney. This is doubly significant
because courts have declined to recognize a constitutional right to visits from
anyone other than counsel, leaving correctional authorities near-total discretion
to decide whether, when, and how to allow visits. 298 If a detainee has no legal
representation---or is represented by a public defender too busy to meet with
accused misdemeanants to listen to their complaints-then there is no guarantee
of being able to speak face-to-face with anyone.
There is no bright-line rule for how ineffective or impractical an alternative
method of communication must be before it is no longer considered a substitute
for the speaker's desired method. In the words of one federal appeals court,
"an alternative must be more than merely theoretically available. It must be
realistic as well."299 Before a proffered alternative channel of communication
can be considered legally inadequate, it must present some burden beyond mere
inconvenience, making the speech unlikely to reach its intended recipients. 300
For instance, in a case outside the correctional setting, involving a book
vendor's challenge to an ordinance prohibiting the sale of literature within one
thousand feet of a sports stadium, the court invalidated the prohibition on First
Amendment grounds because the self-published book would be of interest
primarily to the hockey fans that the vendor was unable to reach, and reaching
them through commercial bookstores would require "Herculean efforts."301
The Supreme Court has recognized that face-to-face interaction can be a
uniquely valuable method of communication not easily replaced by letters or
phone calls. In the case of a foreign national scholar who was denied a visa to

297. See Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (holding that Sixth Amendment is not
offended when misdemeanor defendant is denied appointed counsel, so long as defendant is not
sentenced to incarceration).
298. See Overton v. Bazzetta, 539 U.S. 126, 130---32, 134 (2003) (finding no constitutional
violation in prison rules that could result in loss of visitation privileges for as long as two years at a
time, and declining to address whether any constitutionally significant right of freedom of association
survives incarceration); Bellamy v. Bradley, 729 F.2d 416,420 (6th Cir. 1984) ("Prison inmates have
no absolute constitutional right to visitation.").
299. Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000).
300. "An alternative is not ample if the speaker is not permitted to reach the intended audience."
Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (internal quotes omitted).
301. Weinberg v. City of Chicago, 310 F.3d 1029, 1042 (7th Cir. 2002).

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enter the United States, preventing a willing audience from hearing his remarks,
the Court stated that the possibility that audience members could instead read
his lectures or listen to audiotapes does not extinguish "altogether any
constitutional interest ... in this particular form of access." 302
In the correctional setting, inmates' challenges to the adequacy of the
communication options they are offered have not always found a sympathetic
audience. In addressing the limited time-approximately ten minutes-an
inmate was permitted to spend in a family visit during which he wished to
communicate his grievances to family members while also carrying on a normal
family conversation, the Southern District of New York found that regulations
did not "seriously, if at all, actually curtail" the inmate's freedom to associate
and communicate. 303
Because there is no absolute constitutional entitlement to telephone or email access, an inmate in a jail that disallows interview requests could be left
with the communication option of a postcard---or nothing. Although there may
be a high bar to demonstrate that constraints on media interviews in county jails
categorically leave inmates with inadequate communication channels, the
courts should be open to entertaining such claims under the right set of facts,
such as in states where telephone charges make phone calls an impracticable
alternative and where jails provide limited or nonexistent internet access.
VI. UNSHACKLING FIRST AMENDMENT RIGHTS
A. Current Patchwork Legal Standards Leave Inmates Inadequately
Protected
The state of free-speech protections for inmates is, at best, murky as a result
of a half-century's worth of inconclusive court interpretations. What can be
said for sure is that, within a state prison, neither inmates nor journalists can
insist on a right to speak face-to-face so long as courts find that viable
communication alternatives exist, such as phone calls, letters, and meetings
with counsel, clergy, or families. 304 But when those alternatives are
disaggregated, there is no constitutional right to insist on any one of them,
except for the opportunity to speak with counsel-and that is the one option
that, as a practical matter, is likely to be oflittle usefulness to people in county
jail. That Supreme Court precedent is both fragmented and intensely factspecific leaves considerable uncertainty that accrues to the detriment of the
302. Kleindienst v. Mandel, 408 U.S. 753, 765 (1972).
303. Amaker v. Annucci, No. 14-CV-9692 (KMK), 2016 U.S. Dist. LEXIS 135788, at *12
(S.D.N.Y. Sept. 29, 2016).
304. See Pell v. Procunier, 417 U.S. 817, 825 (1974) (citing visits with family, friends, clergy,
and attorneys as alternative means of conveying information to the outside world).

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would-be speaker because the institution is in control of all of the methods of
communication and can obstruct access to any of them.
An oft-cited reason for denying in-person interview requests concerns
safety. It is possible, however, to accommodate legitimate safety concerns
while still recognizing a baseline First Amendment right of access that is not
zero. Both prisons and jails have been able to craft effective middle-ground
policies that do not require total authority to ban interviews entirely. For
example, interviews can be limited to normal business hours when staffing
levels are highest or capped at a reasonable duration so that any officers who
are pulled off ordinary duties to accompany the journalist are able to resume
their posts. 305 The existence of these effective alternatives would be enough,
outside the prison setting, to demonstrate that excluding news organizations is
an overbroad remedy inadequately tailored to meet the government's valid
safety objectives.
To illustrate how a court might analyze overbroad restrictions on inmate
communications, consider the First Circuit's approach in a 1971 case, Nolan v.
Fitzpatrick, involving a Massachusetts prison's total ban on inmate
correspondence with the news media. 306 The state argued that the prohibition
was justified by safety concerns, such as keeping prisoners from airing rivalries
and grievances that might result in inmates taking revenge. 307 But the court
found that a total ban unduly restricted not just inmates' right to speak but also
the public's right to hear, noting "the fact that the condition of our prisons is an
important matter of public policy as to which prisoners are, with their wardens,
peculiarly interested and peculiarly knowledgeable."308 A balance was then
struck between the tangible concerns of the facility and inmates' rights.
Officials at the facility were told they could instead enforce a narrower, more
tailored prohibition by refraining from distributing editions of newspapers
containing inflammatory articles about the prison that could incite violence. 309
In raising order as a concern, correctional institutions fail to acknowledge
that prisoners communicate amongst themselves, expressing the same
sentiments that officials are so concerned about re-entering the facility.
Information does not need to leave the facility at all to become provocative.
Limiting media access to prevent the spread of inflammatory information
makes little sense as long as inmates are able to talk to each other. Unlike

305. Ayan Ajeen, A 50 State Prison Policy Analysis on Media Access (2019) (unpublished B.A.
thesis, University ofNorth Carolina) (on file with authors).
306. Nolan v. Fitzpatrick, 451 F.2d 545, 549 (1st Cir. 1971).
307. Id at 548.
308. Id at 546.
309. Id

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cafeteria gossip, newspapers will fact-check inmates' claims before publishing
them, so there is little concern that unfounded claims will be published as fact.
As the Nolan court noted, the rights of the listening public cannot be
overlooked or minimized where jails are concerned because so many matters
of public concern are implicated: whether facilities are secure and safe, whether
basic civil rights and civil liberties are being protected, and whether public
money is being spent providently. 310 As the court stated in Nolan, "the
prisoners' right to speak is enhanced by the right of the public to hear."311
Journalists are the conduit giving effect to "the right of the public to hear"
because few ordinary citizens will visit and inspect jails themselves.
Historically, correctional institutions were open for public inspection, often
at a nominal fee, and open to the press for interviews. 312 As prisons and jails
closed to the public, journalistic access became all the more important, often
the only line of communication between inmates and the public. Refusing to
allow journalists to enter the facility for interviews creates the perception that
correctional officials have something to hide. 313 That perception undermines
public confidence in the entire criminal justice system, its efficiency, and the
way it treats those who have been entrusted to its care. Inhibiting effective
news coverage of the correctional system, much like preventing coverage of
criminal trials, could easily "breed suspicion of prejudice and arbitrariness,
which in tum spawns disrespect for law."314 The Court in Press-Ente,-prise I
recognized that the value of openness lies in the fact that those who cannot be
present can still have confidence that the standards of fairness and justice are
being observed, that the normal procedures are being followed, and that any
abuses can become known. 315 Openness enhances both the fairness of the
system and the public perception of fairness, both of which lend themselves to
increased confidence in the criminal justice system. 316
B. Striking the Balance ofAutonomy Versus Control

If a lawsuit challenged the constitutionality of jail policies in Dougherty
County, Georgia, or Orange County, Florida, it is not at all certain what
310. Id at 548.
311. Id; see also Cooper, supra note 111, at 272 ("Communication between prisoners and the
public is an important source for keeping the public informed about one of its public institutions, as
well as providing prisoners a forum of expression. The public has a vested interest in discussing and
criticizing the prison system and its administration.").
312. Bernstein, supra note 96, at 160.
313. Id
314. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980) (Brennan, J.,
concurring).
315. Press-Enterprise I, 464 U.S. 501,508 (1984).
316. Id

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standard a federal court would apply in evaluating the constitutionality of those
policies. It should be. There should be a uniform national standard by which
courts evaluate challenges to policies that unduly restrict jail inmates and
journalists from communicating.
For the reasons previously enumerated, the Pell and Saxbe analysis,
however debatably meritorious in the state prison setting, is even more poorly
suited to the very different setting of a county jail: people are often confined
there for petty crimes (or no crimes at all), the administrator may be an elected
official with no expertise in corrections, few of the inmates are assured of
having legal counsel, and external oversight and supervision is minimal. Nor
is a traditional "public forum analysis" a perfect fit because unlike
demonstrators or others who choose to use public property for their speech,
inmates have no other choice. A jail's communication policy is not so much a
restraint on property as a restraint on people, and for that reason, forum doctrine
may be unduly deferential.
Recognizing a First Amendment right of access to jails for purposes of
interviewing inmates requires navigating a narrow passage between two
established bodies of case law. On one hand, there is a clearly established
entitlement for the public to receive information that already exists and for the
media to watch critical stages of the criminal justice process and the activities
of police in public places. 317 On the other hand, there is neither a First
Amendment right to compel an unwilling speaker to make inaccessible
information available nor an absolute right to enter a confined space where
news happens, even a space owned by the government. 318 These pillars are
unshakable. The question is whether enough daylight exists between them to
recognize a First Amendment right of access to a willing speaker that the
government has, through its affirmative act of confinement, made unavailable.
What makes the question so tricky is that the issue of inmate access can be
viewed from two very different vantage points that may lead to decisively
different analyses: a policy prohibiting, or greatly restricting, interviews could
be seen as an act of government interference regulating the speech of a willing
speaker (in which case it would be viewed under rigorous scrutiny and

317. Michael Roffe, Journalist Access, FREEDOM F. INST. (May 25, 2004),
https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-thepress/joumalistaccess/#:-:text=The%20First%20Amendment%20bars%20Congress,not%20the%20collection%20of
%20it.&text=Access%20becomes%20an%20issue%20when,enter%20private%20or"/o20restricted%2
0areas [https://perma.cc/7F8B-F4VR].
318. Id

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presumed to be unconstitutional)319 or, alternatively, could be viewed as a
refusal to affirmatively make an inaccessible piece of public property open for
expression, which would be viewed more deferentially.320
The courts have dealt with this distinction in the somewhat analogous
public-school setting. Students have minimal First Amendment protection in
using a government-provided medium to convey their speech, such as a
newspaper produced as a graded exercise in a journalism class. 321 A school has
discretion to censor "curricular" student speech as long as there is some
educationally reasonable basis for the decision. 322 But students have
considerably greater First Amendment protection when using their own voices,
which a school may not censor without concrete proof that the speech will
provoke a material and substantial disruption of school functions. 323
Notably, the Supreme Court has drawn on prisoner-rights case law in its
student-speech jurisprudence. In its 1987 Turner decision, the Court held that
prisons may regulate inmate speech so long as the regulation is "reasonably
related to legitimate penological interests."324 Just a year later, almost exactly
the same alignment of Justices parroted the Turner standard in the Hazelwood
school-speech case, holding that "school-sponsored expressive activities" may
be censored so long as the justification is "reasonably related to legitimate
pedagogical concems."325

319. In the context of judicial gag orders on trial participants, reviewing courts have applied
demanding scrutiny, with some even finding that the gag orders are unconstitutional ''prior restraints"
on journalists because they interfere with journalists' ability to speak with otherwise-willing sources.
See CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975) (viewing trial judge's gag order as a
prior restraint on journalists because it interfered with journalists' ability to gather news from willing
speakers); see also J. Publ'g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986) (finding that news
reporters had standing to contest a gag order on participants in a high-profile civil-rights lawsuit
"because the court's order impeded its ability to gather news, and that impediment is within the zone
of interests sought to be protected by the first amendment").
320. Johnson, supra note 90, at 290, 302, discusses this issue in the context of the evolving body
oflaw regarding inmate access to e-mail, observing that the First Amendment is traditionally perceived
as imposing negative ("Congress shall make no law") obligations as opposed to affirmative obligations
to supply a means of communication that speakers do not already have: "The failure of state prison
systems to provide inmates with email access is not the same as a regulation barring access to email
services that are already in place."
321. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 (1988) (holding that publicschool students' First Amendment rights diminish when they are using a publication bearing the
school's name that the school distributes).
322. Id at 273.
323. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 503 (1969); see also Lowry
v. Watson Chapel Sch. Dist., 540 F.3d 752 (8th Cir. 2008) (applying Tinker and finding that students
had a First Amendment right to wear armbands protesting a school's mandatory uniform code in
defiance of an administrative directive prohibiting armbands).
324. Turner v. Safley, 482 U.S. 78, 89 (1987).
325. Hazelwood, 484 U.S. at 273.

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In the Houchins plurality opinion, Chief Justice Burger referred to jail
inmates as "government-controlled sources of information."326 This view
conveniently inverts the facts: jail inmates are people whom the government
has cut off from any ability to communicate except that furnished by the
government. 327 For that reason, a pure "public forum" analysis is inapposite in
the custodial setting; an inmate has not chosen to use government-owned
property for speech but rather is limited by the government to doing so. 328
Just as the Court has created two tiers of First Amendment protection in
schools-a higher tier for individual expression and a lower tier for speech that
depends on a government-provided "forum" to convey speech-it is possible
to craft a standard for jails that balances the interests of speaker and institution
in place of the current regime that is (in practice, if not clearly so in law)
essentially zero First Amendment recourse. As in schools, it might make sense
to afford inmates diminished free-speech protection in a government-supplied
medium that the government is under no obligation to furnish, such as e-mail
access. When an inmate uses a jail computer to send e-mail, the jail's interests
in regulating that communication are heightened; a crime victim who receives
harassing or threatening e-mails might justifiably ask why a jail turned an
inmate loose with internet access to do harm. But the same calculus does not
apply to a face-to-face interview-a person who wants no contact with her
tormentor will not schedule an appointment to visit him-especially where the
interviewer is a professional journalist who accepts the risk of experiencing
unpleasant speech. In the case of e-mail access, the jail is refusing to offer a
communication method (a "positive" obligation), whereas in the case of
interviews, the jail is using its governmental authority to get between two
people who, but for the jail's intervention, would meet and exchange
information (a "negative" obligation). Even if the First Amendment does not
entitle people to have government-created channels made available to them, it

326. Houchins v. KQED, Inc., 438 U.S. 1, 8 (1978).
327. See Leverson, supra note 233, at 445 ("A prisoner is not just a source of information within
government control. She is a human being in the custody of the state who retains all the rights of an
ordinary citizen except those expressly, or by necessary implication, taken from [her] by law."
(internal quotation marks omitted) (quoting Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944), cert.
denied, 325 U.S. 887 (1945))).
328. See Perry Educ. Ass'n v. Perry Loe. Educators' Ass'n, 460 U.S. 37, 45-48 (1983)
(describing three categories of "public forum" property-traditional, designated, and nonforumwhere a speaker's right to use the property for expression varies with the character and use of the
property); see also Bloedorn v. Grube, 631 F.3d 1218, 1232 (11th Cir. 2011) ("[T]he scope of the
relevant forum is defined by the access sought by the speaker, meaning that if a speaker seeks access
only to a limited area of government property, we must tailor our approach to the perimeters of a forum
within the confines of the government property." (internal quotes omitted) (quoting Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985))).

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certainly entitles them to be free from undue interference in conversations with
willing listeners.
A "school-like" two-tier First Amendment approach would start with the
proposition that jailed people may (subject to reasonable time, place, and
manner restrictions) speak with the outside visitors of their mutual choice,
while allowing the government to reject a meeting upon surmounting a burden,
in an individual case, of showing that the interview is realistically likely to
result in a substantial disruption. Such an analysis would honor the distinction
between the ability to push speech onto a potentially unwilling audience (such
as by using social media or e-mail) versus the ability to entertain a visit by a
willing listener whose First Amendment rights are unimpaired by confinement.
The Court already fashioned a workable standard in the Martinez case,
which allows for censoring outgoing prison mail only if the regulation satisfies
rigorous scrutiny: the regulation must advance a "substantial" government
interest and be narrowly tailored to advance that interest, avoiding
overbreadth. 329 Notably, the Martinez Court cited school-speech jurisprudence
in fashioning its standard, which-as with schools-is somewhat more
deferential to government authorities than "real-world" standards but still an
elevated level of scrutiny beyond mere rational-basis review. 330 As with school
speech, a Martinez-type standard for judicial review of policies that pmport to
restrict face-to-face communications between journalists and jail inmates
would be sufficiently adaptable so that administrators could reserve judgment
to make individualized safety-based decisions but would be put to their proof
before nakedly asserting "safety" as a catch-all rationale for secrecy. 331
One of the many "missing pieces" that makes the Supreme Court's inmatespeech jurisprudence unhelpfully circular is that the cornerstone Pell case
began with the premise that the California prison system's prohibitions on
interviewing were not an attempt to cover up abusive conditions. 332 By starting
with that assumption, the Justices left no roadmap for deciding a case in which
stronger evidence of invidious motive exists. If any such claim is even
cognizable at all after the Pell and Houchins cases, the Court has given no
guidance for deciding who would carry the burden of proof, what level of
scrutiny would apply, or what would constitute a decisive taint removing the

329. Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).
330. See id at 409-10 (first citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969); then citing Healy v. James, 408 U.S. 169 (1972) (the college-speech case)).
331. See Leverson, supra note 233, at 450-51 (recommending Martinez as the proper standard
when balancing all flow of communication between prison and jail inmates and the outside world).
332. Pell v. Procunier, 417 U.S. 817, 830 (1974) ("We note at the outset that this regulation is
not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press'
investigation and reporting of those conditions.").

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case from the ambit of Pell. Given the well-documented history of abusive and
inhumane conditions within jails and the government's self-evident interest in
making sure those conditions are not publicly scrutinized, it should not be
necessary for a journalist, or the journalist's would-be interviewee, to come
forward with individualized proof of a wrongful conspiracy to suppress
information. Justice Stewart's credulity in Pell notwithstanding, it is a state of
nature that government agencies will, to borrow his words, "conceal the
conditions" in custodial facilities or "frustrate the press' investigation and
reporting of those conditions."333
Even if it is permissible under prevailing constitutional standards to impose
burdens on media visitors above and beyond what is imposed on family or
clergy visitors, there are real public-policy questions about the wisdom of doing
so. A journalist visitor does not pose any greater safety risk than a nonjournalist (and arguably less because a friend or family member will be more
likely to be enlisted in smuggling dangerous items). If there is no safety
rationale for making journalists secure more demanding approvals than nonjournalists, the remaining rationales-that, as in the case of Dougherty County,
Georgia, or Gaston County, North Carolina,jail authorities are concerned about
how they will be portrayed in the media-are certainly not compelling ones and
may not even be reasonable ones.
There are worthy arguments for the Supreme Court to revisit its prisonspeech jurisprudence (in Turner, Thornburgh, and Jones) in light of what has
happened since those mid-1970s decisions: (1) the Court has recognized a First
Amendment right to observe every critical phase of the criminal trial process,334
(2) an evolving body of case law recognizes the right to record government
employees doing official business on public property, which specifically
includes police but appears to extend more broadly,335 and (3) the Court has
created the "public forum" standard by which restrictions on speech on
government property are evaluated. 336 In light of all of these changed
circumstances, the method of analysis set forth in the Pell-Saxbe line of cases
seems dated both as a matter oflaw and as a matter of fact. Additionally, there

333. Id
334. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
335. Matt Ford, A Major Victor for the Right to Record Police, ATLANTIC (July 7, 2017),
https://www.theatlantic.com/politics/archive/2017/07/a-major-victory-for-the-right-to-recordpolice/533031/ [https://perma.cc/B9QW-BCGJ].
336. See Perry Educ. Ass'n v. Perry Loe. Educators' Ass'n, 460 U.S. 37, 45-46 (1983)
(explaining how a public forum comes to exist and the level of First Amendment scrutiny that applies
depending on the nature of the government property to which the speaker seeks access); see also R.
George Wright, Public Fora and the Problem of Too Much Speech, 106 KY. L.J. 409, 414-17 (2018)
(explaining the recognized categories of forum property and how the level of judicial scrutiny that
applies to First Amendment claims varies with the property's character).

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are worthy arguments for recognizing a heightened degree of constitutionally
guaranteed access for journalists, whose presence in correctional facilities
serves important checking and representational functions and whose
effectiveness in discharging those functions is limited if they must adhere to the
same prohibitions on recording devices that apply to the general public. 337
But neither of those steps, which would involve reevaluating precedent to
some degree, is necessary for the courts to take the more modest steps of
recognizing meaningful First Amendment protection for people in county jail
(as opposed to prison) and for the people who seek to exchange information
with them. Houchins did not conclusively decide anything, and the meager
body of post-Houchins cases from lower courts in the jail context provide no
greater clarity. All that seems certain is that jailed people and journalists will
have no constitutionally guaranteed right to speak with each other as long as
some mix of other effective communication options is available, which suggests
that there is some yet-to-be-located floor of "ineffectiveness" beneath which
prohibiting contact with the press might become constitutionally suspect.
Given the inherent slowness of resolving constitutional litigation, jailed
people will essentially never be able to litigate the adequacy of their
communication options during a time when relief can reach them. For that
reason, a "standard" that says ''jails must offer some communication options,
of undetermined quality and quantity" is no standard at all. Because jail
inmates rarely can obtain meaningful relief by suing, courts must establish
bright-line standards and not intensely fact-specific ones. Even if Pell and
Saxbe, as reinforced by the Court in Turner, contemplate what is effectively
unlimited discretion to ban interviews-for the Court has yet to identify any set
of circumstances under which prisons would be required to admit journaliststhat body of law need not be conclusive of the rights of people in jails,
especially those who are being held in pretrial detention and not for purposes
of post-conviction punishment.

VIL CONCLUSION
Following the killing of a forty-six-year-old Black man by Minneapolis
police who were arresting him for a petty offense, communities across the

337. For an in-depth discussion of this point, see generally Tom A. Collins, The Press Clause
Construed in Context: The Journalists' Right ofAccess to Places, 52 Mo. L. REV. 751 (1987). In a
wide-ranging analysis looking not just at correctional institutions but also at other governmentmaintained property such as military bases, Collins posits that for journalists to be treated "equally"
with the general public may at times require what seems like preferential status because journalists
may need superior access to do their jobs as effectively as members of the public can do theirs with
less access. See id. at 779 ("The controlling factor in determining a different treatment of media and
public should be the degree of access appropriate for the media to fulfill its function.").

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United States erupted in sustained protests against police brutality, especially
the overzealous use of deadly force against Black people who present no
threat. 338 The outcry led to a wave of reform proposals, including immediate
legislative action in several states liberalizing public access to formerly
secretive misconduct complaints against law enforcement officers. 339 While
the focus of the Black Lives Matter campaign has understandably been on
policing-because police misconduct often takes place in public and,
increasingly, on the type of shareable video that ignites outrage-it is the very
nature of jails' invisibility to the public that enables abuse and neglect to fester.
In a typical year, more people die in county jail than are shot to death by police
officers, 340 yet those fatalities only occasionally attract public scrutiny. 341
It is impossible to ignore the fact that limitations on speech behind bars,
along with every other limitation that comes with the loss of rights during
imprisonment and detention, disproportionately affects nonwhite people. 342
The incarceration rate for Black males in 2018 was 5.8 times that of white
males, while the rate for Black women was 1.8 times the rate of white
women. 343 The optic of largely white law enforcement agencies muzzling
largely nonwhite speakers is one that should rightly raise eyebrows. In a June
2020 study, the nonprofit advocacy organization Reflective Democracy
Campaign, using data gathered from sheriffs departments across the country,
reported that ninety percent of sheriffs' positions are held by white males,
338. See Maureen Groppe & Kristine Phillips, From Coastal Cities to Rural Towns, Breadth of
George Floyd Protests-Most Peaceful-Captured by Data, USA TODAY (June 10, 2020, 10:45 AM),
https://www.usatoday.com/story/news/politics/2020/06/10/george-tloyd-black-lives-matter-policeprotests-widespread-peaceful/532573 7002/ [https://perma.cc/GAC3-38C6] (describing nationwide
reaction to May 25th police killing as ''the most widespread mass demonstrations in recent memory").
339. See Ginia Bellafante, Why Secrecy Laws Protecting Bad Officers are Falling, N.Y. TIMES
(June
5,
2020),
https://www.nytimes.com/2020/06/05/nyregion/police-records-50a.htm1
[https://perma.cc/8XEJ-QC8P] (highlighting recent pro-transparency reforms in California and New
York).
340. According to a database maintained by The Washington Post that uses records from law
enforcement agencies across the country, 999 people were shot dead by police in 2019. See Fatal
Force, WASH. POST, https://www.washingtonpost.com/graphics/2019/national/police-shootings2019/ [https://perma.cc/TL8S-K2CZ] (last updated Aug. 10, 2020).
341. A rare exception was the case of Sandra Bland, a twenty-eight-year-old Black motorist who
was found hanged in a jail cell in Waller County, Texas, in July 2015, a case that attracted deep
suspicion because Bland was facing an insignificant traffic charge and had exhibited no discernible
indicia of suicidal disposition to family and friends. See Bill Chappell, Sandra Eland's Phone Video
of Her Own Arrest Surfaces, Reviving Calls For New Inquiry, NPR (May 7, 2019, 3:23 PM),
https://www.npr.org/2019/05/07/721086944/sandra-blands-phone-video-of-her-own-arrest-surfacesreviving-calls-for-new-inqu [https://perma.cc/4VCD-PBB6] (describing cellphone video that shows
Texas highway patrol officer threatening Bland with a stun gun while citing her for failing to signal
for a lane change).
342. BUREAU OF JUST. STATS., OFF. OF JUST. PROGRAMS, U.S. DEP'T OF JUST., PRISONERS IN
2018, at 1 (2020), https://www.bjs.gov/content/pub/pdf/p 18_ sum.pdf [https://perma.cc/69J9-MNEL].
343. Id

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though they represent just thirty percent of the country's population, while
people of color, who represent thirty-nine percent of the U.S. population, hold
only eight percent of sheriff positions, and fewer than three percent of the
positions are held by women of any race. 344 While other state elected offices
are also disproportionately held by white men, including district attorney's
offices and legislative seats, the report concluded: "[W]e have found no other
elected office so overwhelmingly controlled by white men. " 345
The occupancy of jails is not just disproportionately people of color-it is
also disproportionately poor people. 346 The inability to pay for bail is one of
the primary reasons that people remain in county jail custody. By one estimate,
ninety percent of the pretrial detainees held in county jail are there because they
cannot afford bail, putting them in danger of assault, suicide, or infectious
disease for no reason other than poverty. 347 Research has documented that
spending a substantial amount of time in pretrial detention is linked with a
greater likelihood of a conviction, which may be attributable to the pressure to
plead guilty experienced as people become impatient to resolve their cases. 348
People who lack legal representation and are feeling coercion to plead guilty
are exactly the people who might most benefit from having their cases
scrutinized by journalists. Indeed, because of backlogged courts and lack of
adequate legal representation, it is not uncommon for people to stay in jail
longer on pretrial holds-on occasion, even years longer-than the potential
sentence associated with the charged crime; one study found people in
Louisiana sitting in pretrial detention for as long as four years. 349 It seems
inconceivable that the Constitution could tolerate cutting off those people from

344. REFLECTIVE DEMOCRACY CAMPAIGN, CONFRONTING THE DEMOGRAPHICS OF POWER:
AMERICA'S SHERIFFS (2020), https://wholeads.us/wp-content/uploads/2020/06/reflectivedemocracyamericassheriffs-06.04.2020.pdf [https://perma.cc/372A-35V9].
345. Id at 4.
346. Cherise Fanno Burdeen, The Dangerous Domino Effect of Not Making Bail, ATLANTIC
(Apr. 12, 2016), https://www.theatlantic.com/politics/archive/2016/04/the-dangerous-domino-effectof-not-making-bail/477906/ [https://perma.cc/SHR9-6RED].
347. Id; LAURA M. MARUSCHAK, MARCUS BERZOFSKY & JENNIFER UNANGST, U.S. DEP'T OF
JUST.,MEDICALPROBLEMSOFSTATEANDFEDERALPRISONERSANDJAILlNMATES,2011-12(2015),
https://www.bjs.gov/content/pub/pdf/mpsfpjil l l2.pdf [https://perma.cc/J5DR-VQVX]; NANCY G. LA
VIGNE, SARA DEBUS-SHERRILL, DIANA BRAZZELL & P. MITCHELL DOWNEY, JUST. POL'Y CTR,
PREVENTING VIOLENCE AND SEXUAL ASSAULT IN JAIL: A SITUATIONAL CRIME PREVENTION
APPROACH (2011 ), https://www.urban.org/sites/default/files/publication/26746/412458-PreventingViolence-and-Sexual-Assault-in-Jail-A-situational-Crime-Prevention-Approach.PDF
[https://perma.ccN8DM-VUT8].
348. Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case
Outcomes, 34 J.L., ECON. & ORG. 511, 512-13 (2018).
349. Emily Hamer & Sheila Cohen, Poor Stay in Jail While Rich Go Free: Rethinking Cash Bail
In Wisconsin, WIS. PuB. RADIO (Jan. 21, 2019, 6:00 AM), https://www.wpr.org/poor-stay-jail-whilerich-go-free-rethinking-cash-bail-wisconsin [https://perma.cc/EWC5-7STX].

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any method of reaching out to the public for rescue except mailing a postcard
to a news organization.
During 2020, jails across America filled up with detainees swept up by
police in, at times, overzealous responses to protests against the unjustified use
of deadly force by law enforcement against people of color. 350 An Associated
Press tally at the beginning of June 2020 found protest-related arrests to add up
to ten thousand and counting. 351 Most of these arrests have been nonviolent,
the majority of them involving charges of failure to disperse and curfew
violations. 352 A minority occur on charges of burglary and looting, with some
people being charged only for being in the wrong place at the wrong time, such
as a man charged with looting when he happened to walk by and photograph
what was going on. 353
Jails are in no way immune to the brutalization of peopledisproportionately, Black people-by the law enforcement officers entrusted to
keep the public safe. In North Carolina, five former jail officers and a nurse
were charged with involuntary manslaughter in the death of John Neville, a
fifty-six-year-old Black man who was forcibly restrained on the jail floor during
an apparent seizure as he cried out "I can't breathe!"354 In Tennessee, a thirtyseven-year-old Black man suffering from mental distress died after jailers
pinned him to the ground for six minutes until he went limp. 355 Even when
employees are not directly responsible for inflicting the fatal blows, their

350. See Michael Sainato, 'They Set Us Up': US Police Arrested Over I 0, 000 Protesters, Many
Non-Violent, GUARDIAN (June 8, 2020, 6:00 AM), https://www.theguardian.com/usnews/2020/jun/08/george-floyd-killing-police-arrest-non-violent-protesters [https://perma.cc/EY6U2NXD] (collecting complaints by demonstrators who say police overreacted to peaceful protests with
arrests, rubber bullets, and tear gas, including several incidents that resulted in criminal charges against
the officers).
351. Anita Snow, AP Tally: Arrests at Widespread U.S. Protests Hit 10,000, ASSOCIATED PRESS
(June 4, 2020), https://apnews.com/bb2404 f9b l 3c8b53b94c73f8 l 8foa0b7 [https://perma.cc/Q6L4-

HNZM].
352. Id
353. Id; see also Aaron Miguel Cantu, Federal Prosecutors Engaged in Unprecedented Push to
Jail
Protestors
Before
Trial,
INTERCEPT
(Oct.
30,
2020,
6:00
AM),
https://theintercept.com/2020/10/30/federal-prosecutors-protests-pretrial-detention/
[https://perma.cc/H7C9-ZUKD] (discussing how detainee held on federal charges of inciting a riot via
a method of interstate commerce for livestreaming the event on Facebook is finally allowed to tell his
story detailing rough treatment disproportionate to his nonviolent charge).
354. Videos Show North Carolina Man Restrained by Jail Officers Before His Death: "I Can't
Breathe", CBS NEWS (Aug. 6, 2020, l 0:39 AM), https://www.cbsnews.com/news/john-neville-deathbody-cam-videos-guards-arrest-north-carolina/ [https://perma.cc/4AV3-PERW].
355. See Bob Ortega, Nelli Black & Drew Griffin, Videos Raise Question About In-Custody
Death Deemed an 'Accident' by Tennessee Officials, CNN (June 12, 2020, 9:09 PM),
https://www.cnn.com/2020/06/12/us/videos-jail-custody-death-sterling-higgins-invs/index.html
[https://perma.cc/YT25-EVJK] (reporting on wrongful death lawsuit by survivors of Sterling Higgins,
whose death was investigated by a grand jury but produced no criminal charges).

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indifference has been blamed for scores of deadly inmate-on-inmate attacks. 356
Manifestly, the deferential "hands-off' approach of the federal judiciary,
embodied in the Pell-Houchins line of cases, is not working.
Just as assumptions about the confidentiality of police personnel records
are being revisited in light of public alarm over officers' violent misbehavior, 357
it is equally timely to revisit seemingly settled judicial assumptions devaluing
the role of public oversight in keeping detention facilities sanitary and safe.
Public trust in the criminal justice system has been strained to the breaking point
and beyond. If jails are largely operated in an honest and safe manner, then
inviting journalists through the gates will reassure the public and restore
confidence-and if not, then independent media scrutiny is the best hope for
catalyzing reform.

356. See, e.g., Elvia Malagon, Family ofChicago Man Beaten to Death in Cook County Jail Cell
Files Lawsuit: 'Nothing is Going to Take Away This Pain', Cm. TRIB. (Feb. 12, 2020, 10:39 AM),
https://www.chicagotribune.com/news/breaking/ct-cook-county-jail-beating-death-lawsuit-pedroruiz-20200212-udhqvnpf75dolmis6q44ukbicq-story.html [https://perma.cc/QU83-7E4Q] (reporting
that nineteen-year-old Chicago man was beaten to death within a half-hour of arriving at Chicago jail
by a cellmate affiliated with a rival gang); Ross Jones, 19 Inmates Have Died in Macomb Co. Jail
Since 2012; Sheriff Says 'We Do Our Best', WYYZ (Sept. 26, 2018, 10:45 PM),
https://www.wxyz.com/news/local-news/investigations/19-inmates-have-died-in-macomb-co-jailsince-2012-sheriff-says-we-do-our-best#:-:text=19%20inmates%20have%20died%20inside,of"/o20the%20ACLU%20of%20Michigan
(describing 2014 beating death of inmate the day after his arrival at a Detroit-area jail at the hands of
a known assaultive and mentally unstable cellmate).
357. See Weihua Li & Humera Lodhi, Which States Are Taking on Police Reform After George
Floyd?,
MARSHALL
PROJECT
(June
18,
2020,
3:00
PM),
https://www.themarshallproject.org/2020/06/18/which-states-are-taking-on-police-reform-aftergeorge-floyd [https://perma.cc/24NZ-645D] (reporting that lawmakers in sixteen states filed bills to
open up police agencies to greater accountability in the aftermath of outrage over the police killing of
George Floyd).

Electronic copy available at: https://ssrn.com/abstract=3998181