"Orange Is the News Blackout: The First Amendment and Media Access to Jails"

The title of this post in the title of this article recently posted to SSRN authored by Frank LoMonte and Jessica Terkovich.  Here is its abstract:

County jails are hotspots for the spread of COVID-19 infection, overlaid on top of already-existing inadequacies in medical care, overcrowding, and other substandard conditions. Yet despite the intense public interest and concern in the safe and humane operation of jails, they are among the most impenetrable places for news coverage.  A fractured U.S. Supreme Court decision, Houchins v. KQED, has left widespread uncertainty about what — if any — First Amendment right journalists and jail detainees have to speak with each other.

This Article examines and critiques the dubious constitutional logic that has left jail inmates without assurance of any practically effective method of enlisting help from the press and public to blow the whistle on unsafe jail conditions.  The Article calls for the Supreme Court to revisit its unhelpful, decades-old precedent that has emboldened jails to enact highly restrictive policies that deny detainees, many of whom have been convicted of nothing and are being held on petty “poverty charges” — any meaningful ability to speak to the news media.  The Article reports on the results of a nationwide survey of jail policies uncovering several with bizarre and constitutionally indefensible constraints, including one big-city jail that openly forbids jail inmates from discussing jail conditions with the news media.

The authors view the restrictive climate for inmate/media communications in light of contemporary developments, both legal and factual, that support comprehensively revisiting and clarifying the unhelpful Houchins standard. Legally, the landscape has changed because (1) the Court has recognized a First Amendment right to observe every critical phase of the criminal trial process, and (2) an evolving body of caselaw recognizes the right to record government employees (especially law enforcement officers) doing official business on public property.  Factually, the landscape has changed because of the well-documented problem of misuse of law enforcement authority against people of color, including within jails, which has shaken public confidence in the justice system and provoked calls for greater transparency and accountability.  These developments, the Article concludes, call for revisiting seemingly settled assumptions that prevent journalists and inmates from invoking the First Amendment to challenge even grossly overreaching jail policies that suppress whistleblowing speech.