His name is well known among First Amendment practitioners. He is Bruce E.H. Johnson, a friend and seasoned First Amendment lawyer who is a partner at the Seattle office of the Davis Wright Tremaine law firm. He represents information industry clients on issues involving media and communications law as well as technology and intellectual property matters. In addition to being the co-author of the leading treatise on commercial expression (Advertising and Commercial Speech, A First Amendment Guide (2nd ed. 2013), Bruce has written scholarly articles and has done considerable First Amendment appellate work, both in federal and state courts. He has also drafted three press-related statutes that have been enacted into law in Washington State.
Today’s topic concerns press and public access to jails and prisons for the purpose of gathering information relevant to conditions therein. (Hat tip: I selected this topic after reading William Bennett Turner’s informative and engaging book Figures of Speech: First Amendment Heroes & Villains (2011), which has a chapter on the topic. See also Helene Vosters, Media Lockout: Prisons & Journalists.)
Bruce, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our readers.
Question: Ever since the Supreme Court’s 3-1-3 split in Houchins v. KQED (1978), some doubt whether there is any meaningful First Amendment right of press and public access to jails or prisons for the purpose of gathering and distributing information about the conditions therein. On that constitutional score, how bleak are things in your opinion?
Answer: Not good, in my view. In practice, prison administrators have virtually unbridled discretion to prevent meaningful public access, and thus also media access. One problem has been the refusal to permit videotaped interviews within prisons, even though the use of audio and video equipment does not create any additional risks for prison security. Ironically, the one area in the case law that shows some promise is the media’s right of access to executions, especially now that major issues have been raised about executioners’ use of compounded drugs as a result of European refusals to permit the export of killing drugs. Several court decisions, beginning with the press lawsuit against Idaho in 2012, have recognized that the press and the public have access rights to executions. Another success story has been the efforts of the Human Rights Defense Center and its affiliate Prison Legal News (which we have represented in several matters), to gain access to prison information and to push for prisoner rights of access to the media. [See Society of Professional Journalists, "Prison Access Policies"]
Prisons are a vast, undercovered, but important beat. [W]e need more criminal justice coverage. Dan Froomkin, Nieman Reports, Sept. 18, 2013
Question: Are you aware of any independent state constitutional rulings or state statutory reforms in this area?
Answer: Prison rights tend to get litigated more often in federal court than in state court. One exception was the HRDC-PLN lawsuit in Seattle against various telecom carriers, alleging that the companies had overcharged prisoners for their telephone calls. That class action case took more than a decade and was finally settled in 2013. The case should also remind lawyers that prisoners and their families may have valid claims against non-state entities, as well as the prison authorities themselves.
Question: As a statutory matter, could a state law extend protections to the institutional or traditional press, and it alone, without running afoul of the Fourteenth Amendment? In other words, would it be constitutionally problematic if such special protection did not extend to the general public as well?
Answer: Generally, at least since 1974, when Justice Potter Stewart gave his speech at Yale Law School [26 Hastings L. J. 631 (1975)] suggesting that the Press Clause should have some independent meaning, the courts have refused to recognize any significant media-non-media distinctions in First Amendment jurisprudence. The essence of the U.S. Supreme Court’s holding in Citizens United (2010), which rejected precisely such a distinction on First Amendment grounds, is that press rights and public rights must be treated identically. The First Amendment protections discussed in Citizens United clearly apply to the states under the Fourteenth Amendment. But as a practical matter (and speaking as someone who successfully drafted and lobbied for state legislation protecting confidential sources and reporters’ work product, deterring SLAPP claims, and encouraging corrections and clarifications of allegedly defamatory publications), I don’t see any likelihood that the media can obtain statutory protections from state legislatures by throwing fellow citizens under the bus. Politics is about building coalitions, not avoiding them.
Question: If you were to draft a model access law relating to state jails and prisons, what would be its key components?
Answer: Like the Washington anti-SLAPP law (which I drafted back in 2010), it should provide speed (deadlines should be specified), monetary incentives (such as attorney fee awards and perhaps statutory damages) to facilitate government cooperation, and immediate and prompt judicial and appellate review.
Question: Where and why would you draw the line when it comes to limiting any such access?
Answer: Obviously, if there is truly a concern about prison security, state authorities should have appropriate discretion.
Thank you Bruce, I hope you will join us again sometime soon.
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