Opinion
No. 72-1362.
Argued June 30, 1972.
Decided September 6, 1972.
Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellees. John A. Terry, Joseph M. Hannon, Michael A. Katz, and Robert D. Zsalman, U.S. Attys., also entered appearances for appellants.
Joseph A. Califano, Jr., Washington, D.C., with whom Charles H. Wilson, Jr. and Richard M. Cooper, Washington, D.C., were on the brief, for appellees.
Melvin L. Wulf, New York City, and Hope Eastman, Washington, D.C., filed a brief on behalf of Tom Wicker and others as amici curiae urging affirmance.
Appeal from the United States District Court for the District of Columbia.
Before McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges.
ORDER
This case came on for hearing on an appeal from a ruling by the District Court, reflected in a memorandum opinion dated April 9, 1972, 357 F.Supp. 770, that the policy of the Federal Bureau of Prisons in denying all requests by the press to interview designated prisoners violated the First Amendment. The Court directed the Bureau to modify its rules within 30 days to permit such interviews under terms and conditions appropriately reflective of administrative and disciplinary considerations. That decision is presently subject to a stay by the Supreme Court, issued May 13, 1972, pending appeal in this court.
At the oral argument, the Government pressed upon us a supervening decision by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, decided June 29, 1972, as representing a significant limitation by the Supreme Court of the reach of the First Amendment in relation both to the precise issue immediately involved in the three cases then decided, and to the general area of press guarantees. Branzburg, unlike the case before us, compelled revelation by reporters to grand juries of information gathered by them, but the First Amendment claim rested heavily upon the assertion that access to information would be restricted if such compulsion was exerted. One of the cases heard by the Supreme Court with Branzburg and reversed by it, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), was cited by the District Court as relevant to the scope of press access.
Since the case before us deals with the scope of First Amendment rights to access, Branzburg supplies a new element to be considered in the decisional process which was not in existence at the time the record was made and the conflicting claims resolved in the District Court. It seems obvious that considerations of sound judicial administration suggest that any record for future appellate consideration be made in awareness of it, if that is feasible under the circumstances, as it is here.
Accordingly, we have concluded, while retaining jurisdiction of this appeal, to remand the record for such further consideration as the District Court may wish to give the case in the light of Branzburg and, in any event, for specific findings (which may follow upon further evidentiary proceedings) with respect to the following:
1. The extent to which the accurate and effective reporting of news has a critical dependence upon the opportunity for private personal interviews.
2. The extent to which the so-called "big wheel" justification has any tangible footing in a significantly wide spectrum of experience in prison administration.
3. The factual foundations for any other asserted justifications for blanket prohibition of private personal interviews.
4. Whether there may be a valid basis for a ban, in the interest of avoiding impairment of good order, as to a particular prisoner or prisoners, even in the absence of a prior history of unruliness or disruptiveness.
5. Whether it is unfeasible to pursue a flexible approach to the allowance of private personal interviews, with appropriate scope for the judgment of the responsible prison officials and their consideration of administrative convenience or necessity.
6. Any other matters which, in the view of the District Court, by reference to Branzburg or otherwise, would further refine and illuminate the competing claims and assertions made by the parties so that ultimate resolution of the news access right under the First Amendment claimed in this instance may be as informed as possible.
By reason of the foregoing, it is hereby
Ordered that the record in this case is remanded to the District Court for the purposes hereinabove stated and, upon the conclusion of proceedings held hereunder, shall as supplemented be returned to this court for further consideration of the pending appeal.