The opinion
DUNIWAY, Circuit Judge
(concurring):
I concur, but I confess to having serious doubts about the result, not because I think that it is wrong in principle, but because I have great difficulties in reconciling the result with the decisions in Pell v. Procunier, 1974, 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 and Saxbe v. Washington Post Co., 1974, 417 U.S. 843 , 94 S.Ct. 2811 , 41 L.Ed.2d 514 . I think it clear beyond the possibility of argument that the preliminary injunction from which the appeal is taken grants to KQED and other media greater access to the Santa Rita Jail than is granted to the public.
I cannot reconcile this result with the decisions in Pell, supra, and Washington Post, supra. As I read these cases, they stand for this proposition:
“ . . . Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” Branzburg v. Hayes, supra, at 684-685, 94 S.Ct. at 2658. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.
. 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 the government cannot restrain the publication of news emanating from such sources. Cf. New York Times Co. v. United States, supra [ 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 ], 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. Accordingly, since § 405.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protection that the First and Fourteenth Amendments guarantee. 417 U.S. at 834-35, 94 S.Ct. at 2810.
See also Saxbe, supra, 417 U.S. at 850, 94 S.Ct. 2811 .
I happen to believe that, as to most issues of public importance, and assuming that one accepts the media-created notion that there is such an animal as a constitutionally protected “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. This is based on the proposition that, in our modern, urban, overpopulated, complex and somewhat intimidating and alienated society, only the media, as distinguished from the submerged, often alienated, and often frightened, individual, can be counted on to dig out and disseminate the facts about the public’s business. Witness “Watergate” and its remarkable consequences.
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 *295 are not to be taken literally, but I find nothing in them to support that assumption. Yet I am dubious about the result that they seem to require. It seems to me to be obvious that regulations 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. It is one thing to say that representatives of the media, who are not numerous and who can readily be screened, should be able to interview inmates, take pictures, etc., and quite another thing to say that any one of the several million inhabitants of the San Francisco Bay Area, or any one of the million or so inhabitants of Alameda County, should have the same rights. The administrative problems posed by the two are obviously different, and the law ought to recognize the differences. But as I read Pell, supra, and Washington Post, supra, those cases, far from recognizing these differences, expressly disregard them. Accordingly, I must express doubt, not because I think that I ought to, but because I think that the Supreme Court’s decisions require it.