T H E B A T T L E F O R T H E R I G H T TO T E L E V I S E E X E C U T I O N S
S U S A N J A N E S T E D M A N
196

THE BATTLE FOR THE RIGHT TO TELEVISE EXECUTIONS
197
Susan Jane Stedman
Deceirfoer 1, 1977

The Battle for the Right to Televise Executions
In a landmark decision-
1
- in January of 1977, the United States District
Court for the Northern District of Texas ruled that a television reporter must be allowed to interview death row inmates and to film their execution for possible later showing on television news. Texas appealed only that portion of the district judge
1 s preliminary injunction v/hich required Texas to admit the television reporter to the execution chamber to film executions.
The Fifth Circuit Court of Appeals reversed that part of the lower court's
3 judgment dealing with the right to televise executions.
On November 29, 1977, Tony Garrett, a newspaper reporter for Channel 13,
KEFA in Dallas, Texas, requested permission of the Texas Department of
Corrections to film the first execution in. Texas since 1964. Garrett also asked to film interviews with condemned prisoners on "death row" at the
Texas Department of Corrections. The request was denied.
Shortly thereafter, Texas promulgated a media policy stating that only one Texas bureau representative designated by the Associated Press and one
Texas representative designated by the United Press International would be permitted to enter' the execution chamber as a witness and news reporter.
This policy was later rescinded because of Texas Corrections Commissioner
Estelle stating that the Texas Code of Criminal Procedure Articles 43.17 and
43.20 effectively prohibited press access to death rot/ inmates and press
4 attendance at executions.
During the years preceding Garrett's request, members of the news media were permitted, under reasonable regulations, to view and report executions at the Texas Department of Corrections and to conduct interviews with the
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~2~ initiates awaiting execution. This reporting was done both electronically and by written word.
Chief Judge Taylor of the Northern District of Texas enjoined Estelle fran preventing the televising or taping of executions by Garrett.^
Tte Court also held that Article 43.17 of the Texas Code of Criminal
Procedure v;as violative of the First Amendment as it was an absolute and unjustified ban on the access of the news media to death row.®
The Court said that the State may regulate access to prisons in certain circunstances. It stated there are many reasonable regulations that could be properly imposed. However, in the present case the Court felt that the regulations were not reasonable.
The trial court recognized executions to be a historical and newsworthy event as a result of capital punishment laws. In support of the injunction the court stated:
[T]he State cannot be permitted, There there is no reason or justification for so doing, to draw an impenetrable veil of secrecy around a public institution being operated by public officials with public money, for the welfare of the public.7
Judge Taylor concluded that the press has greater rights to public institutions in this case than the general public and distinguished Pell
Q o v. Procunier, and Saxbe v, Washington Post Company'. He did this on four grounds: (1) That capital punishment was one of the most important and controversial public issues, whereas Pell and Saxbe concerned the day to day operations of the prisons; (2) That under the Texas Statutes, there was no public access whatsoever to "death row" and no public witnessing of an execution. In Pell and Saxbe there were regular press tours of the
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- 3 of the prisons; (3) The justifications of security, rehabilitation, and discipline, for restrictions in Pell and Saxbe did not exist in the present case, and (4) The consideration that the granting of press interviews might diminish the deterrent value of imprisonment is not applicable to condemned inmates awaiting execution.
Oil appeal, Judge Ainsworth, writing for the Fifth Circuit Court of
Appeals, read Pell and Saxbe more broadly than Judge Taylor. The Fifth
Circuit said:
We find, then that according to the prinicple enunciated by the Supreme Court in Pell and Saxbe, 'the First
Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.' Therefore, Garrett cannot find his right to film Texas executions in the First Amendment.
10
Although many would agree with the result of the. Fifth. Circuit in this case, the court's reasoning has placed a severe restriction on the newsgathering rights of the media.
The Historical Development of the Public's Right; to Know
It is first important to recognize that the right to know consists of both the right to gather information and the right to receive it.
11
The function of the right to know in our society is (1) essential for personal self-fulfillment, (2) a significant method for seeking the truth, (3) necessary for collective decision-making in a democratic society, and (4)
1 ? a vital mechanism for effectuating social change without resort to violence.
During the time of the Constitutional Convention, there was an absence of recorded debate over a news-gathering right as a concept inherent in
221

- 4 the freedcin of the press clause of the First Amendment. This was due to several factors. At that time there 'was no institutionalized executive bureaucracy so there could have been no organized attempt to withhold information. Newspapers were poorly staffed and organized and were not in a position to gather news assertively. The press at that time was not hampered in obtaining information.
Focusing on the nature of a democracy, it is obvious that the public, as sovereign, must have information available to it in order to instruct its servant, the government. Otherwise, ultimate decision making by the people, to whan this duty is assigned? becomes impossible. Whether or not the guarantee of the right to know is an important purpose of the
First Amendment, it is certainly a main element of that, provision and should be recognized as such.
The press is the vehicle to the public's right to know. It was for this reason that the First Amendment singled out the press for protection:
The Constitution specifically selected, the press . . . to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuse of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people, whom they are selected to serve.
This First Amendment's freedom of the press clause is unique because the press is the only nongovernmental organization explicitly given
1 f> constitutional protection.
A citizen's right to know non-confidential information about his tax-supported institutions, grounded on the First Amendment, has often been recognized by the Court. First Amendment guarantees 'are not
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- 5 for the benefit of the press so much as for the benefit of all of us."
18
] 9
It was not until Branzburg v. Hayes " that the Court explicitly acknowledged that the freedom of the press included a right to gather information. "Without seme protection for seeking out the news, freedom of the press could be eviscerated."20
In Branzburg the United States Supreme Court, required reporters to appear before grand juries and testify as to sources of printed articles on crimes. The Court, held that even an indirect burden on the right to gather news can be justified only by a compelling governmental interest not effectuated by overly broad means.
21
There are two possible situations where governmental restrictions are placed on access to information. First, if there is a valid contentrelated reason for the restriction which outweighs any public right to be informed. Second, is the situation where the content of the information does not call for secrecy, but valid administrative reasons necessitate
22 denial of access to the general public."
In the past, the Supreme Court has always analyzed freedom, of the press as a fundamental personal right. This was because most of the cases arose out of situations that interfered with printed expression.
However, this does not control in information-gathering cases where the
23 institutional nature of the press should assume, greater importance.
Instead of the usual analysis of First Amendment claims of balancing the governmental purposes against the First Amendment interest, the Court determines whether there are other means of achieving governmental objectives without imposing so great a burden on those First Amendment interests.

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If such a less restrictive alternative is found, the Court will invalidate the regulations in order to maximize the scope of the First Amendment freedoms.^
In Pell and Saxbe, the Court lias withdrawn from this active suspicion of state action which infringes on First Amendment rights and accepted the government's judgment that the rule was necessary. It is this reasoning tliat was accepted by the Fifth Circuit in the Garrett case that is so objectionable.
The Pell and Saxbe Reasoning
In the early 1970
!
s much uncertainty was developing as to whether boundries could legally be drawn around the newsgathering function of the press. Prior to the Pell and Saxbe decisions, there were three groups of cases that had explored the right to gather news: (1)
27 those dealing with disclosure of confidential news sources , (2) those dealing with discriminatory or arbitrary government restrictions on newsgathering in public places or in designated press facilities^' , and
(3) those dealing with the right of access to sources of information not
29 available to the public generally.
There was a split in the Circuit decisions in this third area. On ore
30 side was Seattle--Tacocna Newspaper Guild, Local 82 v. Parker which upheld a ban on press-inmate interviews as a reasonable regulation within the scope of discretion of the prison administration. On the other side was
31
Washington Post Co. v, Fleindienst which struck down a similar ban on press-inmate interviews as an unconstitutional abridgment of freedom of the press.
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The conflict was resolved in a 5-4 Supreme Court decision in Saxbe v. Washington Post
Co,
where the ban was upheld. "The boundry drawn around the newsgathering function of the press restricted newsman to gathering infomation solely frcm those sources generally available to the public.
Pell and Saxbe were decided by the Supreme Court on the same day. The cases involved state and federal prison regulations banning prearranged press interviews with individually selected prisoners. General press access to the prison arid to prisoners was permitted. The press plaintiffs in Pell and Saxbe claimed that the regulations of the prison authorities abridged their First M>sndment right to gather news without governmental interference. The government
!
s argument against the press interviews was
(1) that the publicity gave power to certain disruptive inmates, i.e. the big wheel theory, (2) that all imiates should be treated uniformly, and
(3) the administrative burden that would be incurred frcm processing applications for interviews and defending decisions to deny request was
•3-3 too great.
34
In Pell two important findings of fact were made by the district court and accepted by the Court of Appeals. The District Court, concluded that face-to-face interviews ware essential to accurate and effective reporting about prisoners and prison life. Second, the trial court found that through a selective interview policy, the "big-wheel" phenomenon could be
33 adequately dealt with.
The Supreme Court found, in Pell that the regulation banning prearranged press interview® was not unconstitutional since there were alternative means of carmunication available to the inmates to oonrnunicate with the
2
21

- 8 news media. Prisoners vere allowed to ccmnunicate by mail; were permitted to receive visits frcm individuals on visiting lists; and were permitted to ccmnunicate with the press through members of their families and attorneys. The Court also found that the members of the press did not have the right to gather news without governmental interference, and did not have an absolute right of access to these sources of what was regarded as newsworthy information. The Court cited the legal principle
Or enunciated in Branzburg' , that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.
The Court concluded as follows:
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. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, supra, and that government, cannot, restrain the publication of news emanating frcm such sources. Cf. Hew York Times
Co. v. United States, supra. It is quite another thing to suggest 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. That proposition finds no support in the words of the Constitution or in any decision of this Court
In Saxbe, the Court was unable to distinguish the case from Pell and found Pell controlling. Again the Court stated: "Newanen have no constitutional right of access to prisons or their inmates beyond that op afforded to the genera], public. °

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The majority in Pell and Saxbe essentially used Branzburg to support their holding that the press presented no First Amendment claim, without employing the balancing test of competing interests utilized in Branzburg.
The Court in Branzburg had balanced the competing interests to determine if the reporters could be compelled to testify at grand jury proceedings as to intonation confidentially received. They determined that the interest of the general public in effective law enforcement outweighed the burden
4ft on the contitutionally protected right to gather news.
The right to gather information was the First Amendment claim in
Branzburg, Pell and Saxbe. Although in Branzburg the public had no right to withhold from the grand jury information received confidentially, the Court did decide that the press claim presented a First Amendment problem. However, in Pell and Saxbe the Court found that the press did not present a First Amendment claim because the general public was denied access to prisons for personal interviews with inmates. Therefore, the
Court's reliance on Branzburg was erroneous since Branzburg involved a
First Amendment problem, but the Court said Pell and Saxbe presented no
First Amendment claim.
The dissenters in Pell and Saxbe found a First Amendment claim and judged the public's right to know to be paramount. They viewed, the rights of the press in the context, of attempting to fulfill the right to know. The dissenters recognized that "restrictions of the press' right to gather information limited to public's right to know since the millions of receipients to whom the press would have provided information lost seme of their power to know.
Justice Powell in his dissent said the burden on the government is more stringent when it attempts to justify denying the press the right to
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- 1 0 gather information them when it denies that right to the general public.
He thought that freedom of speech and of the press protected the individual interest and the societal interest. He viewed the press as
42 an agent for the general public. Douglas in his dissent stated that the guarantee of a free press protects not only the interest of the
4
3 media but extends protection to the genreal public's right to know.
In summary, Pell and Saxbe adopted a reasonableness standard of review instead of the traditional oarpelling interest test. The cases represent an attempt by the Supreme Cburt to assist prison officials in maintaining prison discipline by recognizing that prison officials have the greatest familiarity with daily administrative demands. They recognize that there is a right to gather information, but that right does not impose upon the government the duty to make available to newsmen sources of information not available to members of the public generally. The majority equated press access to public access. "An excessive reliance on such a simplistic formula by other courts faced with similiar issued may preclude a rigorous application of first
44 amendment values."
Opportunity for the Court to Review Pell Reasoning in KQED
The Ninth Circuit refused to follow the reasoning of Pell and
45
Saxbe in KQED, Inc. v. Bouchins. The Supreme Court recently granted
46 certrorati, but had not yet issued a decision.
In KQED it was shown that KQED in the past had regularly reported on newsworthy events at the Santa Rita jail in Alireda County, California.
A news reporter from the television station requested permission of
Sheriff Houchins to inspect the facility and was refused on the grounds of policy. The station filed suit all edging that such refusal was

- 1 1 arbitrary and served no legitimate public interest, and sought an order enjoining the sheriff from excluding KQED frcm covering newsworthy events at the Santa Rita jail.
The defendant relied on the reasoning of Pell that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general p u b l i c . " T h e Ninth Circuit Court; distinguished
Pell by citing the trial court's finding that "the First Amendment rights of both the public and the news media were infringed by appellant's
48 restrictive policy.
The Ninth Circuit Court applied the traditional First Amendment test to the case. They said, "A governmental restriction on First
Amendment rights can he upheld only if the restriction furthers an important or substantial governmental interest unrelated to suppressing speech and the restriction is the least drastic mean of furthering that governmental interest.
The Court also made an interesting ccrtment in light of the Pell court's reasoning that press access should equal public access.
"Although both groups have an equal constitutional right of access to jails, because of differing needs and administrative problems, camion sense mandates that the implementation of those correlative right not be identical."" (Underlining supplied for emphasis)
In the Garrett case, there are similiar circumstances as in the
KQED case. Article 43.17 of the Texas Code of Criminal Procedure provides that only a physician, lawyer, relatives, friends and spiritual advisors may be admitted, to see and converse with a prisoner on "death row." Article 43.20 provides that the executioner and his assistants, the Board of Directors of the Department of Corrections, two physicians,

- 1 2 a spiritual advisor, county judge and sheriff, along up to five relatives and friends of the condemned may be present at a prisoner's execution.
Since the general public has no right of access to death row or to the execution, this bring the Garrett case in line with KQED.
Judge Duniway in his concurring opinion in KQED could not reconcile the decision of the majority with Pell and Saxbe.
I happen to believe that, as to most issues of public importance, and assuring that one accepts the media-created notion that there is such an animal as a constitutionally protect public's right to know and further assuming that the media somehow embody that
'right,' then the media have a protected preferred right to access to information about the public's business...But I cannot reconcile these notions with the express basis for the decisions in Pell, supra, and in Washington Post,supra. I would like to assume that those decisions are not to be taken literally, but I find nothing in them to support that assumption.
Yet I am dubious about the result they
f
.ean to require.
It seems to me to be obvious that recu] at ions governing media access to a jail, assuming that the media have a right, along with the public, to such access, must differ from regulations governing access, by the public at large.51
Judge Hufstedler in his concurring opinion was also bothered by the same issue. He could not reconcile Pell and Saxbe with the results.
Fie believed that privacy should be balanced against the right to know rather than the majority's compelling state interest approach.
On February 1, 1977, Mr. Justice Fehnquist issued an Opinion and
Order in his capacity as Circuit Justice for the Ninth Circuit staying the Ninth Circuit decision:
The legal issue to be raised by applicant's petition for certiorari seems quite clear. If the 'no great access' doctrine of Pell and Saxbe applies to this case, the Court of Appeals and the District Court were wrong, and the injunction was an abuse of discretion. If, on the other
2 21

- 1 3 hand, the holding in Pell is to be viewed as irrpaliably limited to the situation where there already existed substantial press and public access to the prison, then Pell and Saxbe are not necessarily dispositive, and review of this "Court of the porpriety of the injunction, in light of those cases would be appropriate, although necessary.
Use of the Pell Reasoning in the Garrett Case
The Fifth Circuit in the Garrett case .relied on the Pell reasoning to reach its result in banning the broadcast of an execution.
The Gourt recognized that the press is given seme protection for newsgathering by the First Amendment. However, this protection is ret absolute. The Court said, "The Constitution does not, however, require government to accord the press special, access to information not shared by members of the public generally.
The Fifth Circuit refused to distinguish Pell as the lower court held done. Referring to Pell and Saxbe, the Court said, "We cannot agree that those cases must be read so n a r r o w l y . T h e Court specifically rejected, the test of balancing a public interest against constitutional right. The government had no affirmative duty to make available to newsmen information not available to the public generally.
Instead of plunging head first into the Pell, and Saxbe arena, the
Fifth Circuit had severaL alternatives they could have used to reach the same result in this case. Ey using the Pell and Saxbe reasoning, the
Court has succeeded only in further eroding the First Amendment right of the press to gather news.
Televising an Execution Would Amount to a Public Execution
Civilized society has clearly turned away frcm public executions.
Of the states that still provide for capital punisiuient, eleven states

-14have statutes restricting witness executions.'^
3
Fifteen other states list the individual that can be present at an execution and prohibit all other individuals.^® Hie State of Washington in its obscenity statute prohibits the publication of detailed accounts of an execution of any p e r s o n .
Ten states limit the nurrber of newsmen present and. regulate their recording of the execution.58
In 1890, the Supreme Court, upheld state statutes restricting attendance at executions. In Rolden v. Minnesota^, the Court upheld a Minnesota statute that restricted those present at an execution bo the sheriff and his assistants, a spiritual advisor, a physician, and up to six persons designated by the sheriff, but no newsmen. No account of the details of the execution could be published. The Court was concerned with possible ex post facto application of the statute, but the Court recognized the statute to be a legitimate exercise of the state's police power.
In State v. Pioneer Press^O, The Minnesota Supreme Court also upheld the same statute's constitutionality under the Minnesota State
Constitution. The Court found that the intent of the act was to avoid exciting an unwholesome effect on the public mind, and for that reason executions took place before dawn so as to discourage the morbidly curious. Hie Court stated:
Theses are regulations which the Legislature, in its wisdom and. for the public good, could legally prescribe in respect to executions.. .The extent of
•the limitations must be left to the wisdom of the
Legislature, and in this instance we find no infringement upon any rights guaranteed by the Constitution.61
On this same issue, the Garrett court recognized, the right of a state to restrict attendance at executions. "We will not in this case
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-15frustrate the official policy of the State of Texas by requiring
access to a news camerairan for filming for television executions in state prison, under the guide of protecting first amendment rights. "62
The constitutional guarantee of freedom of the press does not deprive the state of its right to enact laws in the legitimate exercise of its power.
J
Like other citizens, newsmen are subject to reasonable regulation.
Under its police pcwer, the state may regulate the press in the interests of the public health, morals, safety, and welfare. ^
By prohibiting the televising of executions, the government is seeking to protect the general welfare and morals of the public. The District
Court recognized that such broadcasts would be an "offense to hunan dignity/'
"distasteful," or "shocking", but thought it was better left to the discretion of the television news direct than governmental officials on what to broadcast,
However, obscenity laws are an example of governmental restrictions for the general welfare and morals of the public. These restrictions have been upheld by the courts.
66
There is no significant difference in the state prohibiting obscene sexual displays frcm public viewing of executions, of executions.
The United States District Court of the District of Goluribia stated in Capital Broadcasting Company v. Mitchell
67
that "the unique characteristics of an electronic communication make it especially subject to regulation in
C
Q the public interest."
This case dealt with the enforcement of a statute prohibiting cigarette advertising on any electronic media subject to the jurisdiction of the
Federal Communications Act. Tne Court held that this neither violated the
First Amendment rights of the broadcasters or their due process rights.

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The Court recognized that Congress enacted the Public Belath Cigarette
Smoking Act of 1969 because of the harmful effect of cigarette advertising on television and radio coxtmercials.
Substantial evidence showed that the most persuasive advertising was being conducted on radio and television, and in this case, broadcasts were particularly effective in reaching a very large audience of young people.
It was shown that the younger person placed greater reliance on the. broadcast message rather than the written word. ^ Statistics in the case showed a great attraction on the part of young people to the broadcast media.
Similiarly, it is logical that the television and radio broadcast of a public execution would have a great effect on the young people of our society.
This effect wuld not be to deter crime. ''Frequent executions dull the sensibilities toward the talcing of life, This makes it easier for men to kill and increases murders, which in turn increase hangings, which in turn increase murders, and so on, around the vicious circle."^1
Broadcasting an Execution Violates the Privacy Fights of the Individual
Being Executed
Texas enacted the policy of restricting access to executions to, among other reasons, protect the privacy rights of the individual being executed. Jerry Lane Jurek, a Texas inmate condemned to death, objected to the possible televising of his execution, and has sought a judicial order precenting it. His Petition for Writ of Certiorari was denied by the United States Supreme Court after the district court decline to issue the preliminary injunction in Jurek v. Estelle. Hie denial was without prejudice to the merits. In the petition, Jurek described his privacy right:

- 1 7 little question exists that electocution is a gruesome and physically demeeming method of inflicting death...Public viewing of such an occurence would tum petitioner's death in to a "freakish" and cruel show which would contravene not merely prohibitions of the
Eighth Amendment but petitioner's Fourth Amendment guarantee of privacy. Griswald v. Connecticut, 281 U.S.
479 (1965). Those petitioner's rights to die with a motium of dignity and the public's right not to have the event thrust before their eyes would violated by a televised execution.
The authority of the state to provide statutory protection of an
73 individual's privacy rights was recognized in Katz v. United States,:
[Hie] protection of a person's general right to privacy —- his right to be let alone by other people is . . . left largely to the . . . States.'
Hie State responsibility was expressed in Cox v. Broadcasting Corp. v.
C o h n . ^ 5
"if there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or ther exposure of private information.
The right of privacy was also corrmented upon in Time, Inc. v. Hill??, where the Court- stated:
Nor do we intimate any view whether the Constitution limits state power to sanction publication of matter obtained by an intrusion into a protected area, for example, throught the use of electronic listening devices.
In neither court opinion in the Garrett case was the right of privacy mentioned in the court's decision. Yet it cannot be disputed that every man has the right to die with, dignity. Televising an inmate's execution would merely turn his death in to a public spectacle, and deprive him of his last hour of privacy. Privacy of the individual cannot be denied or eroded by the media.
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Finally, the members of the condemned man's family must not be forgotten. The adverse impact of public execution on these individuals
79 can hardly be overstated. As was decided in Estes v. Texas , television has a proper area of activity and limitation beyond which it cannot go with its camera. Public execution is an area properly excluded from television.
SUMMARY
The District Court in the Garrett case used the better reasoning by not relying on Pell and Saxbe to reach its conclusion. The Fifth
Circuit's reliance on these cases just further erodes the First Amendment claim regarding newsgathering privileges of the press.
Ihe Court of Appeals erred in its reasoning because ifxfailed to recognize the First Amendment claim of Tony Garrett to film death executions. If other members of the press were allowed into the execution chamber, it is faulty reasoning to say there is no claim because Tony Garrett wanted access with his camera. This case was not an access problem, but the Court anal/zed it as if it were.
However, the District Court went to far in making executions public by allowing them to be televised. Seine natters are better left in the discretion of governmental officials rather than with television managers.
The result of the Fifth Circuit seems correct but the Court of
Appeals should have stated what its real concerns were with televising executions instead of stating there was not First Amendment claim. The
Court only briefly mentioned the public execution issue and never mentioned the privacy of the inmate being executed. It is really policy considerations

-19that govern this case, not the broadcast media's right of access.
People do not want to see executions made into a "circus" on their television screens. Nor should those inmates being executed be forced to die under the eye of the camera. The Fifth Circuit's error was not in voicing its real concerns with public executions and addressing those concerns on their legal merits as could have been done.

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FOOINOTES
1. Texas Court Grants Right to Televise Executions, 4 Individual
Rights and Responsibilities Newsletter 1, Spring, 15777"™
2. Garrett v. Estelle, 424 F. Supp. 468 (1977).
3. Garrett v. Estelle, 556 F.2d 1274 (1977).
4. Id. at 1276; Article 43.17 reads as follows: "Upon the reoeipt oF~such condemned person by the Director of the Department of
Corrections, he shall be confined therein until the time for his execution arrives, and while so confined, all persons outside of said prison shall be denied access to him, except his physician and lawyer,who shall be admitted to see him when necessary to his health or for the transaction of business, and the relatives, friends and spiritual advisors of the condemned person, who shall be admitted to see and converse with him at all proper times, under such reasonable rules and regulations as may be made by the Board of Directors of the Department of Corrections."; Article
43.20 provides as follows: "The following persons may be present at the execution: the executioner, and such persons as may be necessary to assist him in conduction the execution; the Board, of Directors of the Department of Corrections, two physicians, including the prison physician, the spiritual advisor of the condemned, the chaplains of the Department of Corrections, the county judge and sheriff of the county in •which the Department of Corrections is situated, and any of the relatives or friends of the condemned person that he may request, not exceeeding five in number, shall be admitted. No convict shall be permitted by the prison authorities to witness the execution."
5. Garrett v. Estelle, 556 F.2d 1274 (1977).
6. The State of Texas did not appeal these holdings to the Fifth
Circuit.
7. Garrett v. Estelle, 424 F. Supp. 468, 472 (1977).
8. Pell v. Procunier, 417 U.S. 817 (1974).
9. Saxby v. Washington Post Co., 417 U.S. 843 (1974).
10. Garrett v. Estelle, 556 F.2d 1274, 1278 (1977).
11. The First Amendment "necessarily protects the right to receive
[information]." Martin v. City of Struthers, 319 U.S. 141, 143
(1943); The Public's Right to Know: Pell v. Procunier and
Saxbe v. Washington Post Co., 2 Hasting L.Q. 829,830 (1975).

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12. Emerson, Legal Foundations of the Riqht to Know, 1976 Washington
U.L.Q. 1 (1976).
13. Oonment, Hie Right of the Press to Gather Information After Branz— burg and Pell, 124 TJ. Pa. L. Rev. 166, 168-69 (1976).
14. Emerson, Legal Foundations of the Right to Know, 1976 Washington
U.L.Q. 1 (1976).
15. Mills v. Alabama, 304 U.S. 214, 219 (1966).
16. Stewart, Or of the Press, 26 Hastings L.J. 631, 633 (1975).
17. See Kleindienst v. Mandel, 408 U.S. 753, 162065 (1972); Red Lion
Broadcasting Co. v, FCC, 395 U.S. 367, 390 (1969); Stanley v.
Georgia, 394 U.S. 557, 564 (1969); Lament v. Postmaster General,
381 U.S. 301 (1965); Thomas v. Collins, 323 U.S.516, 534 (1945).
18. Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).
19. Bransburg v. Hayes, 408 U.S. 665 (1972).
20. IciL_ at 681
21. However, in this case, the Court decided there was a compelling governmental interest and ruled that the reporters had to disclose their sources.
22. Comment, The Right of the Press to Gather Information After Branzburg and Pell, 124 U. Pa. L. Rev. 166, 181-82 (1975).
23. IcL_ at 175.
24. See, Procunier v. Martinez, 94 S.Ct. 1800, 1809 (1974); United
States v. Robel, 389 U.S. 258, 267-68 & n.20 (1967); Feyishian v.
Board of Regents, 385 U.S. 589, 609-10 (.1966); Shelton v. Tucker,
364 U.S. 479, 488 (1960); Note, Bans on Press Interviews of Prisoners,
88 Harvard L. Rev. 165, 168 (1974).
25. Pell v. Procunier, 417 U.S. 817 (1974).
26. Saxby v. Washington Post Co., 417 U.S. 843 (1974).
27. Branzburg v. Hayes, 408 U.S. 665 (1972); Ccmrtent, Prisons and the
Right of the Press to Gather Information 43 U. of Cinn. L. Rev.
913,914 (1974).
28. See,Dayton Newspapers. Inc. v. Starick, 345 F.2d 667 (6th Cir. 1965);
Borreca v. Fasi, 3G9 F. Supp. 906 (D. Hawaii 1974); Providence Journal
Co. v. McCoy, 94 F. Svpp. 634 (D.R.I. 1950) aff'd 190 F.2d 760
(1st Cir. 1951).
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29. See, Estes v. Texas, 381 U.S. 532 (1965); McMullan v. Wohlgemuth, 453
Pa. 147, 308 A.2d 888 (1973); Dayton Newspapers, Inc. v. Dayton,
23 Ohio Misc. 49, 259 N.E. 2d 522 (Montgomery Ctounty C.P. 1970), aff'd 28 Ohio App. 2d 95, 274 N.E. 2d 766 (Ct.App. 1971); Los Angeles
9 Cal. App. 3d 448, 88 Cal Bptr. 605 (Ct. App. 2d Dist. 1970), cert. denied, 401 U.S. 982 (1971). ~
30. 480 F. 2d 1062 (9th Cir. 1973).
31. 494 F. 2d 994 (D.C. Cir.) rev'd sub nam. Saxbe v. Washington Post Co.,
417 U.S. 843 (1974).
32.Prison Regulation Prohibiting Interviews Between Newsmen and Inamtes
Held Constitutional, 60 Cornell L. Rev. 446, 448 (1975).
33. Hie Public's Right to Know: Pell v. Procunier and Saxbe v. Washington
Post Co., 2 Hastings L.Q. 829, 834-35; Conment, The Right of the
Press to Gather Information After Branzburg and Pell, 124 U. Pa. L.
Rev. 166, 187 (1976).
34. The District Court held that the state reguJations were invalid.
35. Comment, Prisons and the Right of the Press to Gather Information,
43 U. of Cinn. L. Rev. 913, 917 (1974).
36. Bransburg v. Hayes, 408 U.S. 665 (1972).
37. Pell v. Procunier, 417 U.S. 817, 834-34 (1974).
38. Saxby v. Washington Post Co., 417 U.S. 843, 850 (1974).
39. The Public's Right to Know: Pell v. Procunier and Saxbe v. Kfcshington
Post Co., 2 Eastings L.Q. 829, 843.
40. Branzburg v. Hayes, 408 U.S. 665, 690-91 (1972).
41. Ihe Public's Right to Know: Pell v. Procunier and Saxbe v. Washington
Post Co., 2 Hastings L.Q. 829, 857.
42. Id. 841-44
43. 3xL_ 847
44. Coranent, Prisons and the Right of the Press to Gather Information,
43 U. of Cinn. L. Rev. 913, 920 (1974).
45. KQED, Inc. v. HDuchins, 546 F.2d 284 (1976).
46. KQED, Inc. v. Houchina, 97 S.Ct. 2630 (1977).
47. KQED, Inc. v. Houchins, 546 F.2d 284, 285 (1976).
48. Id. at 295.
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49. Id.
50. IcL
51. Id. at. 295
52. A-594 Hbuchins v. KQED, Inc. on application for stay,45 U.S. Lav/
Week 2363.
53. Garrett v. Estelle, 556 F.2d 1274, 1277 (1977).
54. Ich_ at 1278
55. Va. Code §53-318 (Michie 1974); Vt. Stat. Ann. Tit. 13, §7105
(Equity 1974); S.C. Code 1975 Cum.Supp. §15-190 (Michie 1975); Mb.
Stat. Ann. §546.740 (Vernon 1953); Mass. Gen. Laws Ann. Chap. 279
§50 (West 1972); Ann. Code Md. Art. 27, §73 (Michie 1976); La. Rev.
Stat. §15.50 (West 1967), as amended, Cum Supp. (1977); 111. Stat.
Arm. §119-5 (West 1973), Ga. Code Ann. §27-25i5 (Harrison 1972) ;
Col. Rev. Stat. (.1973), §16-11-404 (Bradford-Robinson (1974)), as amended, Cum. Supp. (1976).
56. Ind. Stat. Ann §35-k-46-14 (Eobbs-Merrill 1975); 10B N.Y. Consoliated Laws Ann. §664 (West 1968) as amended Cum. Supp. (1977); N.M.
Stat. Ann. §41-14-12 (Smith 1972); N.H. Rev. Stat. Arm. § 630.60 (N.H.
1974); Nev. Rev. Stat. §176.355 (Nev. 1973); Rev. Stat. Neb. §29-2534
(neb. 1975); Rev.
Code
Mon. Ann. §94-8017 (Smith 1949); Mich.
Compiled Laws Ann. §769.22 (West 1968); Kan. Stat. Ann. §22-4003
(Kan. 1974); Ann. Cal. Code Tit. 3 §3605 (Vfest 1970); Code of Ala.
15 §349 (Michie 1959) as amended, Cum. Supp. (1973); Tenn. Code Ann.
§40-3119 (Bdbbs-Merrill 1975); Wy. Stat. §7-398 (Michie 1959); Utah
Code Ann. §77-36-18 (Smith 1973) as amended, Cum. Supp. (1975);
S.D. Compiled Laws §2.3-49-22 (Sftith 1969).
57. Rev. Wash. Code Ann. §9.68.020 (West 1961).
58. Okla. Stat. Ann. 22 §1015 (W-st 1958); D.C. Code Ann. §23-704
(West 1967); Ark. 1974 Stat. Ann. §43-2615 (Bcbbs-Merrill 1948);
Conn. Gen. Stat. Ann. §54-100 (West 1960), as amended, Cum. Supp.
(1977); Fla. Stat. §922,11 (1975); Ky. Rev. Stat. §431.250 (Bobbs-
Merill 1975; Miss. Code 1972 Ann. §99-19-55 (State of Miss. 1973);
N„J. Stat. Ann §2A:165-6 (West 1971); Pages Ohio Rev. Code.
59. Holder, v. Minnesota, 137 U.S. 483 (1880).
60. State v. Pioneer Press, 100 Minn. 173, 110 N.W. 867 (1907).
61. Id. at 869.
62. Garrett v. Estelle, 556 F.2d 1274, 1280 (1977).
63. Whaler v. Roe, 51 L.Ed. 2d 64 (1977).

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64. Conrnonwealth v. Boston Transcript Co., 249 Mass. 477. 144 N.E. 400
(1924); Chronicle and Gazette Publications Co. v. Attorney General,
48 A.
2d 478, appeal dismissed 329 U.S. 690 (1947).
65. Garrett v. Estelle, 424 F. Supp. 468, 472 (1977).
66. Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973); Miller v. California, 413 U.S. 15 (1972); Both v. United States, 354 U.S. 476
(1957).
67. 333 F. Supp. 582 (D.C.C. 1971).
68. IeL_ 584.
69. IcL_ at 586.
70. IcL_ at 586 fti. 13.
71. Pritchard, A History of Capital Punishment, 1960 at xvii, xviii.
72. U.S.L.W. March 29, 1977.
73. 389 U.S. 347 (1967).
74. Id._ at 350.
75. 420 U.S. 469 (1975).
76. IcL_
77. 385 U.S. 374 (1967).
78. Ich_ at 385, note 9.
79. 381 U.S. 532, 585 (1965).
221