A sharply divided Supreme Court ruled yesterday that the right of access to information the government makes available is no greater for the press than for the public at large.
But the court held that equality of access must be flexible enough to accommodate the practical needs of electronic as well as print journalists.
The ruling extends two 1974 decisions that the press and public have the same access to prisoners, but stopped short of carrying those decisions to their ultimate conclusion; no access to the public, no access to the press.
Acting in a California case involving a public television station and a troubled jail, a plurality of four of the nine justices held that the First Amendment guarantees neither the press nor public a right of access to inforamtion generated or controlled by the government.
Three of the four justices held that San Francisco Bay Area station KQED had no constitutional right of access to the Alameda County Jail in Santa Rita beyond the right Sheriff Thomas L. Houchins granted to ordinary citizens in monthly guided tours. The tours excluded portions of the jail known as "Little Greystone," the scene of alleged rapes, beatings and other adverse conditions.
"The right to receive ideas and information is not, the issue," wrote Chief Justice Warren E. Burger, joined by Justices Byron R. White and William H. Rehnquist. "The issue is a claimed special privilege of access which . . . is not essential to guarantee the freedom to communicate or publish," Burger said.
He said that jail and prison conditions are matters of great public importance, that the press unquestionably has an important role as the "eyes and ears" of the public, and that there is "an undoubted right" to gather news from any source by legal means. But that "affords no basis for the claim that the First Amendment compels others - private persons or governments - to supply information," he said.
In contrast, three other justices said that the acquisition of information by the public about the operation of public institutions such as prisons must be protected lest "the process of self-governance contemplated by the framers . . . be stripped of its substance."
For that reason, wrote Justice John Paul Stevens, "information-gathering is entitled to some measure of constitutional protection," not for "the private benefit of those who might qualify as representatives of the 'press,' but to ensure that the citizens are fully informed regarding matters of public interest and importance."
Houchins consistently denied access to inner portions of the jail where, Stevens noted, conditions were found by a California court to be so bad as to violate the constitutional ban on cruel and unusual punishment.
"An official prison policy of concealing such knowledge from the public by arbitrarily cutting the flow of information at its source abridges the freedom of speech and of the press protected by . . . the Constitution," Stevens said. Justices William J. Brennan Jr. and Lewis F. Powell Jr. joined him.
Justice Potter Stewart held the swing vote because Justice Harry A. Blackmun, who was ill when the case was argued, and Justice Thurgood Marshall did not participate. Marshall is a former special assistant counsel of the NAACP. Two NAACP branches were involved in the case.
Agreeing partially with Burger, Stewart, who wrote the 1974 decisions, said the Constitution provides equal access to government once it "has opened its doors." But he parted company by denying that equal means identical. "The concept of equal access must be accorded more flexibility in order to accommodate the practical distinctions between the press and general public," he said.
Pointing out that a journalist touring a jail is gathering "information to be passed on to others," Stewart said, "That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society." He added:
"A person touring Santa Rita Jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail's sights and sounds to those who cannot personally visit the place, he must use cameras and sound equipment."
The immediate issue before the court was the validity of an injunction, issued by a federal judge and upheld by the 9th U.S. Circuit Court of Appeals, ordering the sheriff to open the jail to KQED and others and to permit cameras and recorders to be used for inmate interviews.
Burger wanted to reverse and Stevens to uphold the 9th circuit. Stewart provided the crucial vote for reversal, but tempered it with substantial agreement with Stevens. Even though the injunction was "overboard," in that it ordered Houchins to admit reporters into Little Greystone and to let them interview randomly encountered inmates, the Constitution does entitle the press to access - with cameras and recorders - to access at reasonable times, Stewart said.