.--News organizations have claimed that the First Amendment status of the press compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving. 183 The argument for a limited exemption to permit journalists to conceal their sources and to keep confidential certain information they obtain and choose at least for the moment not to publish was rejected in Branzburg v. Hayes 184 by a closely divided Court. ''Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.'' 185 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of newsmen in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries. 186
The Court observed that Congress and the States were free to develop by statute privileges for reporters as narrowly or as broadly as they chose; while efforts in Congress failed, many States have enacted such laws. 187 The assertion of a privilege in civil cases has met with mixed success in the lower courts, the Supreme Court having not yet confronted the issue. 188
Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation. 189 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, although it seemed to doubt that the consequences alleged would occur, but it observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches. 190
Government and the Conduct of Trials .--Conflict between constitutionally protected rights is not uncommon. One of the most difficult to resolve is the conflict between a criminal defendant's Fifth and Sixth Amendment rights to a fair trial and the First Amendment's protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity 191 and during trials that were media ''spectaculars'' 192 have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of ''gag orders'' on press publication of information directly confronts the First Amendment bar on prior restraints, 193 although the courts have a good deal more discretion in preventing the information from becoming public in the first place. 194 Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pre-trial proceedings, and in those cases the Court has enunciated several important theorems of First Amendment interpretation.
When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings, 195 a major debate flowered that implicated all the various strands of the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend trials. 196 The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia, 197 but the Justices could not agree upon a majority rationale that would permit principled application of the holding to other areas in which access is sought.
Chief Justice Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices (and one of them in a separate concurrence drew conclusions probably going beyond the Chief Justice's opinion). 198 Basic to the Chief Justice's view was an historical treatment which demonstrated that trials were traditionally open. This openness, moreover, was no ''quirk of history'' but ''an indispensable attribute of an Anglo-American trial.'' This characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the ''therapeutic value'' to the public of seeing its criminal laws in operation, purging the society of the outrage felt with the commission of many crimes, convincingly demonstrated why the tradition developed and was maintained. Thus, ''a presumption of openness inheres in the very nature of a criminal trial under our system of justice.'' The presumption has more than custom to command it. ''[I]n the context of trials . . . the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.'' 199
Justice Brennan, joined by Justice Marshall, followed a significantly different route to the same conclusion. In his view, ''the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government.'' It preserves and protects meaningful control over government through public discussion of its operation, and government therefore is compelled to see to the availability of information that people need to engage in that meaningful discussion. Thus, there is in fact a right of access that arises in the context of situations implicating self-government, including, but not limited to, trials. 200
The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government's or the defendant's interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court 201 involved a statute, unique to one State, that mandated the exclusion of the public and the press from trials during the testimony of a sex-crime victim under the age of 18. For the Court, Justice Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness 202 and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right is not absolute, but in order to close all or part of a trial government must show that ''the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.'' 203 The Court was explicit that the right of access was to criminal trials, 204 so that the question of the openness of civil trials remains.
The Court next applied and extended the right of access in several other areas, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I 205 that historically voir dire had been open to the public, and that ''[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'' 206 No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, e.g. in camera consideration of jurors' requests for protection from publicity. In Waller v. Georgia, 207 the Court held that ''under the Sixth Amendment, any clo sure of a suppression hearing over the objections of the accused 208 must meet the tests set out in Press Enterprise,'' and noted that the need for openness at suppression hearings ''may be particularly strong'' due to the fact that the conduct of police and prosecutor is often at issue. 209 And in Press Enterprise II, 210 the Court held that there is a similar First Amendment right of the public to access to most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused's Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be ''specific findings . . . demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.'' 211 Openness of preliminary hearings was deemed important because, under California law, the hearings can be ''the final and most important step in the criminal proceeding'' and therefore may be '''the sole occasion for public observation of the criminal justice system,''' and also because the safeguard of a jury is unavailable at preliminary hearings. 212
Government as Administrator of Prisons .--A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. 213 The identifiable governmental interests at stake in administration of prisons are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. 214 In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between newsmen and prisoners. The Court's more recent deferential approach to regulation of prisoners' mail has lessened the differences.
First, in Procunier v. Martinez, 215 the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters ''unduly complain,'' ''express inflammatory . . . views or beliefs,'' or were ''defamatory'' or ''otherwise inappropriate.'' The Court based this ruling not on the rights of the prisoner, but instead on the outsider's right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation, and it must not be utilized simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary or essential to the protection of the particular government interest involved.
However, in Turner v. Safley, 216 the Court made clear that a more deferential standard is applicable when only the communicative rights of inmates are at stake. In upholding a Missouri rule barring inmate-to-inmate correspondence, while striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard. ''[W]hen a regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'' 217 Several considerations are appropriate in determining reasonableness of a regulation. First, there must be a rational relation to a legitimate, content-neutral objective. Prison security, broadly defined, is one such objective. 218 Availability of other avenues for exercise of the inmate right suggests reasonableness. A further indicium of reasonableness is present if accommodation would have a negative effect on liberty or safety of guards or other inmates. On the other hand, an alternative to regulation ''that fully accommodated the prisoner's rights at de minimis cost to valid penological interests'' suggests unreasonableness. 219 Two years after Safley, the Court directly limited Martinez, restricting it to regulation of outgoing correspondence. In the Court's current view the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications. 220
Neither prisoners nor newsmen have any affirmative First Amendment right to face-to-face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions. 221 Prison restrictions on such interviews do indeed implicate the First Amendment rights of prisoners, the Court held, but the justification for the restraint lay in the implementation of security arrangements, affected by the entry of persons into prisons, and the carrying out of rehabilitation objectives, affected by the phenomenon of the ''big wheel,'' the exploitation of access to the news media by certain prisoners; alternatives to face-to-face interviews existed, such as mail and visitation with family, attorneys, clergy, and friends. The existence of alternatives and the presence of justifications for the restraint served to weigh the balance against the asserted First Amendment right, the Court held. 222
While agreeing with a previous affirmation that ''newsgathering is not without some First Amendment protection,'' 223 the Court denied that the First Amendment accorded newsmen any affirmative obligation on the part of government. ''The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.'' 224 Government has an obligation not to impair the freedom of journalists to seek out newsworthy information, and not to restrain the publication of news. But it cannot be argued, the Court continued, ''that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally.'' 225
Pell and Saxbe did not delineate whether the ''equal access'' rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied, nor did they purport to begin defining what the rules of equal access are. No greater specificity emerged from Houchins v. KQED, 226 in which the broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that ''[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. . . . [U]ntil the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.'' 227 Justice Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved an injunction more narrowly drawn to protect the press' right to use cameras and recorders so as to enlarge public access to the information. 228 Thus, any question of special press access appears settled by the decision; yet there still remain the questions raised above. May everyone be barred from access and, once access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators? 229
Government and Power of the Purse .--In exercise of the spending power, Congress may refuse to subsidize exercise of First Amendment rights, but it may not deny benefits solely on the basis of exercise of these rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding--even if the project also receives non-federal funds--provided that the speech limitations do not extend to the use of nonfederal funds outside of the federally funded project. In Regan v. Taxation With Representation, 230 the Court held that Congress could constitutionally limit tax-exempt status under Sec. 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. ''Congress has merely refused to pay for the lobbying out of public moneys,'' the Court concluded. 231 The effect of the ruling on the organization's lobbying activities was minimal, however, since it could continue to receive tax- deductible contributions by creating a separate affiliate to conduct the lobbying. In FCC v. League of Women Voters, 232 on the other hand, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation, by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist's argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm'n 233 should be controlling. 234 Several years later, however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government's decision ''to fund one activity to the exclusion of the other.'' 235 It remains to be seen what application this decision will have outside the contentious area of abortion regulation. 236
[Footnote 184] 408 U.S. 665 (1972). ''The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.'' Id. at 682.
[Footnote 185] Id. at 690-91.
[Footnote 186] Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court's opinion. Justice Powell also submitted a concurring opinion in which he suggested that newsmen might be able to assert a privilege of confidentiality if in each individual case they demonstrated that responding to the governmental inquiry at hand would result in a deterrence of First Amendment rights and privilege and that the governmental interest asserted was entitled to less weight than their interest. Id. at 709. Justice Stewart dissented, joined by Justices Brennan and Marshall, and argued that the First Amendment required a privilege which could only be overcome by a governmental showing that the information sought is clearly relevant to a precisely defined subject of inquiry, that it is reasonable to think that the witness has that information, and that there is not any means of obtaining the information less destructive of First Amendment liberties. Id. at 725. Justice Douglas also dissented. Id. at 711.
[Footnote 187] At least 26 States have enacted some form of journalists' shield law. E.g., Cal. Evid. Code Sec. 1070; N.J. Rev. Stat. 2A:84A-21, 21a, -29. The reported cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976). The greatest difficulty these laws experience, however, is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A. 2d 330, cert. denied sub. nom., New York Times v. New Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439 U.S. 1301, 1304 , 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay).
[Footnote 189] Zurcher v. Stanford Daily, 436 U.S. 547, 563 -67 (1978). Justice Powell thought it appropriate that ''a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment'' when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at 577.
[Footnote 190] Congress has enacted the Privacy Protection Act of 1980, Pub. L. No. 96-440, 94 Stat. 1879, 42 U.S.C. Sec. 2000aa, to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations.
[Footnote 194] See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (disciplinary rules restricting extrajudicial comments by attorneys are void for vagueness, but such attorney speech may be regulated if it creates a ''substantial likelihood of material prejudice'' to the trial of a client); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (press, as party to action, restrained from publishing information obtained through discovery).
[Footnote 197] 448 U.S. 555 (1980). The decision was 7-to-1, Justice Rehnquist dissenting, id. at 604, and Justice Powell not participating. Justice Powell, however, had taken the view in Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials.
[Footnote 199] Id. at 564-69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press- Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II).
[Footnote 200] Id. at 585-93.
[Footnote 201] 457 U.S. 596 (1982). Joining Justice Brennan's opinion of the Court were Justices White, Marshall, Blackmun, and Powell. Justice O'Connor concurred in the judgment. Chief Justice Burger, with Justice Rehnquist, dissented, arguing that the tradition of openness that underlay Richmond Newspapers, was absent with respect to sex crimes and youthful victims and that Richmond Newspapers was unjustifiably extended. Id. at 612. Justice Stevens dissented on mootness grounds. Id. at 620.
[Footnote 202] That there was no tradition of openness with respect to the testimony of minor victims of sex crimes was irrelevant, the Court argued. As a general matter, all criminal trials have been open. The presumption of openness thus attaches to all criminal trials and to close any particular kind or part of one because of a particular reason requires justification on the basis of the governmental interest asserted. Id. at 605 n.13.
[Footnote 203] Id. at 606-07. Protecting the well-being of minor victims was a compelling interest, the Court held, and might justify exclusion in specific cases, but it did not justify a mandatory closure rule. The other asserted interest, encouraging minors to come forward and report sex crimes, was not well served by the statute.
[Footnote 204] The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the word at one point. Id. at 605.
[Footnote 208] Gannett Co. v. DePasquale, supra n., did not involve assertion by the accused of his 6th Amendment right to a public trial; instead, the accused in that case had requested closure. ''[T]he constitutional guarantee of a public trial is for the benefit of the defendant.'' DePasquale, 443 U.S. at 381 .
[Footnote 211] Id. at 14.
[Footnote 212] Id. at 12.
[Footnote 215] 416 U.S. 396 (1974). But see Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977), in which the Court sustained, while recognizing the First Amendment implications, prison regulations barring solicitation of prisoners by other prisoners to join a union, banning union meetings, and denying bulk mailings concerning the union from outside sources. The reasonable fears of correctional officers that organizational activities of the sort advocated by the union could impair discipline and lead to possible disorders justified the regulations.
[Footnote 217] Id. at 89.
[Footnote 218] All that is required is that the underlying governmental objective be content neutral; the regulation itself may discriminate on the basis of content. See Thornburgh v. Abbott, 490 U.S. 401 (1989) (upholding Federal Bureau of Prisons regulation allowing prison authorities to reject incoming publications found to be detrimental to prison security).
[Footnote 222] Id. at 829-35.
[Footnote 224] Id. at 834.
[Footnote 225] Id. The holding was applied to federal prisons in Saxbe v. Washington Post, 417 U.S. 843 (1974). Dissenting, Justices Powell, Brennan, and Marshall argued that an important societal function of the First Amendment is to preserve free public discussion of governmental affairs, that the press' role was to make this discussion informed through providing the requisite information, and that the ban on face- to-face interviews unconstitutionally fettered this role of the press. Id. at 850.
[Footnote 226] 438 U.S. 1 (1978). The decision's imprecision of meaning is partly attributable to the fact that there was no opinion of the Court. A plurality opinion represented the views of only three Justices; two Justices did not participate, three Justices dissented, and one Justice concurred with views that departed somewhat from the plurality.
[Footnote 227] Id. at 15-16.
[Footnote 228] Id. at 16.
[Footnote 229] The dissenters, Justices Stevens, Brennan, and Powell, believed that the Constitution protects the public's right to be informed about conditions within the prison and that total denial of access, such as existed prior to institution of the suit, was unconstitutional. They would have sustained the more narrowly drawn injunctive relief to the press on the basis that no member of the public had yet sought access. Id. at 19. It is clear that Justice Stewart did not believe the Constitution affords any relief. Id. at 16. While the plurality opinion of the Chief Justice Burger and Justices White and Rehnquist may be read as not deciding whether any public right of access exists, overall it appears to proceed on the unspoken basis that there is none. The second question, when Justice Stewart's concurring opinion and the dissenting opinion are combined, appears to be answerable qualifiedly in the direction of constitutional constraints upon the nature of access limitation once access is granted.
[Footnote 231] Id. at 545. See also Cammarano v. United States, 358 U.S. 498, 512 -13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment).
[Footnote 235] Rust v. Sullivan, 111 S. Ct. 1759, 1772 (1991). Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 1780-81.
[Footnote 236] The Court attempted to minimize the potential sweep of its ruling in Rust. ''This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression.'' 111 S. Ct. at 1776. The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor-patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor-patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. See, e.g., Stanford Univ. v. Sullivan, 773 F. Supp. 472, 476-78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia, of application of vagueness principles in a university setting); Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (''offensiveness'' guidelines restricting Center for Disease Control grants for preparation of AIDS-related educational materials are unconstitutionally vague); Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D.Cal. 1992) (''decency clause'' restricting grants by the National Endowment for the Arts is void for vagueness under Fifth Amendment and overbroad under First Amendment; artistic expression is entitled to the same level of protection as academic freedom).