Petition — Stahl v. Oklahoma

& 3 2 4 7 5 Office-Su re

er SEP

IN THE

ALEXANDER L STEWVAS,

CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

RONALD EARL STAHL, ET AL.,

Petitioners,

Ve

THE STATE OF OKLAHOMA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE

OKLAHOMA COURT OF CRIMINAL APPEALS

E. BARRETT PRETTYMAN, JR.

PAUL J. LARKIN, JR.

HoGAN & HARTSON

(a partnership including

*

professional corporations)

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

ROBERT HAGER

1324 North Capitol Street

Washington, D.C. 20002

(202) 797-8106

Attorneys for Petitioners

* Counsel of Record

————

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether the First Amendment to the Constitution of

the United States protects the press from criminal prose-

cution for trespassing where (a) reporters peacefully

entered a nuclear power plant construction site for the

sole purpose of observing and repe~ting a bona fide news

event after demonstrators had already entered the same

property, and (b) press access had been restricted by

state authorities in an attempt to control and limit press

coverage of the event.

(i)

ii

LIST OF PARTIES

Ronald Earl Stahl, William A. Collard, Michael D.

Kelley, Vicki Jean Monks, Ben Bernstein, and David P.

McDaniel were defendants in the District Court of

Rogers County and were appellants before the Oklahoma

Court of Criminal Appeals.

The State of Oklahoma was plaintiff-appellee in all

cases.

TABLE OF CONTENTS

Page

Og i Bg | | eC PNE fi)

EE TE III coos 02s nic sachianeans otncipndosneesndenaaimedlinente ii

eo Bs ee ne. i yt. a nee ne iv

eR ERE ea AG RS SR OC oe dare oR Pe 1

te Eee See Ree ented Onn Ome 2

RELEVANT CONSTITUTIONAL AND STATUTORY

eNOS HS Se Eee arn 2

rates Oe toe CASE... 3

STAGES AT WHICH THE FEDERAL QUESTIONS

WERE RAISED AND PRESERVED .........000000000...... 10

REASONS FOR GRANTING THE PETITION............ 10

I a elekonciaie 20

Be I etic cc onssadccinandeenenieittessdencadanab caapoosencamdleaabiess la

APPENDIX A—Decision of the Oklahoma Court

of Criminal Appeals .................... la

APPENDIX B—Findings of Fact and Conclu-

sions of Law of the District Court

of Rogers County 0.0000. 26a

APPENDIX C—Judgment of Conviction and Sen-

(iii)

iv

TABLE OF AUTHORITIES

Cases:

Baltimore Gas & Elec. Co. v. NRDC, 103 S.Ct. 2246

RR EE ae Te a easly ETS AC ae! Bee

Bivens v. Six Unknown Federal Narcotics Agents,

ty ORS | ee ee aaa ene

Bouie v. City of Columbia, 378 U.S. 347 (1964) ......

Branzburg v. Hayes, 408 U.S. 665 (1972) 0.00000...

Commonwealth v. Wiseman, 249 N.E.2d 610 (Mass.

1969), cert. denied, 399 U.S. 960 (1970) ............

Consolidated Edison Co. v. Public Service Comm'n,

Me TG. RIE os satcacomsecteaes ei tencatih = kon eie

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1). NEAR sa tea 2a eC Si a ree een ete, ae

Craig Vv. Harney, 331 U.S. 367 RIN pices ge te

Duke Power Co. v. Carolina Envt’l Study Group,

ER Re _, Taneenag ier na ae

Estes v. Texas, 381 U.S. 582 (1965) ...:....................

Gannett Co. v. DePasquale, 443 U.S. 368 (1979)...

Garrison V. Louisiana, 379 U.S. 64 (1964) _............

Globe Newspaper Co. Vv. Superior Court, 102 S.Ct.

SE OID fo sstnipuodeepsno Macncnitsvionadbasealpenedarveanis 12, 13,

Grosjean V. American Press Co., 297 U.S. 233

(RES NA cB RR I rae ede ad ena oe eS eae

Los Angeles v. Lyons, 103 S.Ct. 1660 (1938) 0...

Martin v. City of Struthers, 319 U.S. 141 (1943)...

Mills v. Alahama, 384 U.S. 214 (1966) 2.000 ..

Minneapolis Star & Tribune Co. Vv. Minnesota

Comm’r of Revenue, 103 S.Ct. 1365 (1983)...

Morisette v. United States, 342 U.S. 246 (1952) .....

Near v. Minnesota er rel. Olson, 283 U.S. 697

I Sal eT

New York Times Co. Vv. Sullivan, 376 U.S. 254

a

NRDC v. NRC, 685 F.2d 459 (D.C. Cir. 1982),

rev'd sub nom. Baltimore Gas & Eleer. Co. v.

NRDC, 106 S.Ct. 2246 (1968) _............................

Pacific Gas & Elec. Co. vy. State Enerqy Resources

Conservation & Develonment Comm'n. 108 8.Ct.

1718 (1988) ........... a ela cI ata

Page

15

14, 18

Vv

TABLE OF AUTHORITIES—Continued

Page

Pell v. Procunier, 417 U.S. 817 (1974) ........000000...... 12

Rakas V. Illinois, 439 U.S. 128 (1978) 0.000000. 17

Rawlings v. Kentucky, 448 U.S. 98 (1980) 0.00.0... 17

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

EE SRS ss LES Sec se 12, 13, 14, 17

Rizzo v. Goode, 423 U.S. 362 (1976) ...........00000000. 17, 18

Smith v. California, 361 U.S. 147 (1959) 000... 17

Smith v. Daily Mail Publishing Co., 443 U.S. 97

ELUTE 6 AAP ati Rein eR 13

United States v. Bailey, 444 U.S. 394 (1980) _...... 17

United States v. Caceres, 440 U.S. 741 (1979) ...... 17

United States v. Payner, 447 U.S. 727 (1980) _....... 19

United States v. Salvucci, 448 U.S. 83 (1980) _...... 17

Zemel Vv. Rusk, 381 U.S. 1 (1965) 2.000202. 19

Constitution:

Ce cna passim

Fourteenth Amendment 2020000000000. ee ec ceeeeeeeeeeee 2

Statutes:

a 1

Okla. Stat. Ann. tit. 21, §92 (West 1958) 0000000... 27

Okla. Stat. Ann. tit. 21, § 1835(a) (West Supp.

RI ABER AE CO Oe ee 2, 6,7

Other Authorities:

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn. L. Rev. 349 (1974) —....00000000..... 18

Amsterdam, The Supreme Court and the Rights of

Suspects in Criminal Cases, 45 N.Y.U.L. Rev.

EEE SA ao ENO DO 17

K. Davis, Discretionary Justice (1969) .................... 18

Foote, Tort Remedies for Police Violations of Indi-

vidual Rights, 39 Minn. L. Rev. 493 (1955) ........ 18

S. Glasstone & W. Jordan, Nuclear Power and its

Environmental Effects (1980) 2000.00.00 15

Goldstein, Administrative Problems in Controling

[sic] the Exercise of Police Authority, 58 J.Crim.

L.C. & P.S. 160 (1967) ................ 17

vi

TABLE OF AUTHORITIES—Continued

National Advisory Comm'n on Civil Disorders, Re-

EE IE Sa. dailies biestnchoseatchecioeniconscnieopentenenteasbina

67 Op. Md. Att’y Gen. No. 82-024 (July 19, 1982)..

President's Comm'n on Crime in the District of

Columbia, Report on the Metropolitan Police

8 RRR IE Ee Sr marae ie ere eC

Report of the Energy Project at the Harvard Busi-

ness School (R. Stobaugh & D. Yergin eds.

MS all = RS ee ee

The President's Comm'n on Law Enforcement and

Administration of Justice, Task Force Report:

ee cashsvonsnnes

2 The Writings of Thomas Jefferson (P. Ford ed.

RARE EEE aaakicakainttiatebsidensabanssenie

9 Writings of James Madison (G. Hunt ed. 1910)..

Page

18

12

18

15

18

14

14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

RONALD EARL STAHL, ET AL.,

‘ Petitioners,

THE STATE OF OKLAHOMA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

Petitioners Ronald Ear] Stahl, et a/., pray that a writ

of certiorari issue to review the judgment of the Okla-

homa Court of Criminal Appeals in this matter.

OPINIONS BELOW

The Findings of Fact and Conclusions of Law of the

District Court of Rogers County are not officially re-

ported, but are printed as Appendix B (App. 26a et seq.)

hereto, and are unofficially reported at 5 Media L. Rep.

2313. The decision of the Oklahoma Court of Criminal

Appeals from which certiorari is sought, dated June 22,

1983, is not yet officially reported, but is printed as Ap-

pendix A (App. 1a et seq.) hereto.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. $ 125413). The Oklahoma Court of Criminal Ap-

peals’ decision and judgment herein was rendered on

June 22, 1983. The Court of Criminal Appeals is the last

court of appeal in Oklahoma for cases of this kind. 20

Okla. Stat. Ann. § 40 (1982 & Supp. 1983). On August

22, 1983, Justice White granted petitioners’ timely ap-

plication for an extension of time to file their Petition

for a Writ of Certiorari, and authorized the petition to

be filed up to and including September 20, 1983.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

‘tne =First Amendment to the Constitution of the

United Sates provides, in pertinent part:

Congress shall make no law * * * abridging the

freedom of speech, or of the press * * *.

The Fourteenth Amendment to the Constitution of the

United States provides, in pertinent part:

No State shall * * * deprive any person of life,

liberty or property, without due process of law * * *.

Section 1835(a) of Title 21, Oklahoma Statutes,

provides:

Whoever shall willfully or maliciously enter the gar-

den, yard, or enclosed field of another after being

expressly forbidden to do so by the owner or oc-

cupant thereof shall be deemed guilty of trespass

and upon conviction thereof shall be fined in any

sum not to exceed Twenty-five Dollars ($25.00);

provided, that anyone who willfully or maliciously

enters any such garden, yard, or field, and therein

commits or attempts to commit waste, theft, or dam-

age shall be deemed guilty of a misdemeanor and

upon conviction thereof shall be fined in any sum not

less than Fifty Dollars ($50.00) nor more than Five

Hundred Dollars ($500.00), or by confinement in

the county jail for not less than thirty (30) days

nor more than six (6) months, or both such fine and

imprisonment.

Section 92 of Title 21, Oklahoma Statutes, provides:

The term ‘willfully’ when applied to the ‘ntent with

which an act is done or omitted, implies simply a

purpose or willingness to commit the act or the omis-

sion referred to. It does not require any intent to

violate law, or to injure another, or to require any

advantage.

STATEMENT OF THE CASE

Because of a key finding by the triai court, not dis-

turbed on appeal, the issue in this case is clearly defined

as whether officials of a federally- and state-regulated

nuclear power plant, acting in concert with local law en-

forcement authorities, may manipulate the flow of in-

formation to the public.

This issue grows out of the attempt by several bona

fide members of the media harmlessly to enter upon the

grounds of a construction site for a proposed nuclear

power plant in order to witness a protest by a group op-

posed to further construction of nuclear power facilities.

These reporters' crossed onto the Black Fox site solely

to fulfill their professional obligation to the public to

report the events that were to take place and not in any

way to incite, abet, or further the demonstration other-

wise taking place, nor to impede the efforts of law en-

forcement authorities to maintain order or apprehend the

protestors. And their conviction for trespassing followed,

not from an impartial effort to protect legitimate state

and private interests through enforcement of the law of

trespass, but from a carefully orchestrated effort by

state authorities intentionally to minimize the likelihood

of critical commentary upon their action by denying the

media access to the site of the demonstration.

These reporters, petitioners here, have claimed through-

out the proceedings below that the First Amendment for-

‘In addition to petitioners, a number of other members of the

media also entered the grounds at Black Fox; some were prose-

cuted for trespassing and others were not.

4

bade any such attempt by state officials to silence criti-

cism by the press, and therefore to shield their actions

from public scrutiny. Before describing the lower courts’

treatment of petitioners’ claim, and thereafter the rea-

sons why this Court should consider that claim, it

will be helpful if we first describe the events giving rise

to these prosecutions, and the officials’ motivations, as

found by the trial court, for their actions.

The June 2, 1979 Demonstration

The Public Service Company of Oklahoma (“PSO”),

in conjunction with two rural electrical cooperatives,*

owns a 2,206 acre tract of land in Rogers County, Okla-

homa, known as the Black Fox Station, where PSO was

in the process of constructing a nuclear power plant at

the time in question.” This proposed plant had aroused

“significant public controversy” (App. 39a), including

extensive hearings by the Nuclear Regulatory Commis-

sion respecting the suitability of the site for a nuclear

power plant. The proposed plant had also attracted pro-

test from parties opposed to its construction, including

a demonstration held eight months before during which

protestors had entered the Black Fox grounds in an

act of civil disobedience. This demonstration led to the

prosecution of several protestors for trespassing, but the

2 Associated Electric Cooperative, Inc., and Western Farmers

Electric Cooperative.

* By finding that there was state action in part because PSO is

the recipient of substantial federal funds and subject to federal

control (App. 28a-39a), the trial court in effect treated PSO’s land

as public property. The majority of the judges on the appellate

court also seemed to assume that the property was public, because

they relied on this Court's cases dealing with the use of public

property (App. 5a, 6a-7a). The dissent concluded that the property

was at least quasi-public (App. 18a-19a). While it would seem clear

from this recitation that ti.. property was public or quasi-public for

purposes of constitutional treatment, we need not press the point in

view of the arguments made here. Even if the property were pri-

vate, a criminal conviction could not stand given the facts of this

case.

~

vu

charges were ultimately dismissed. Several reporters had

also entered the Black Fox grounds to witness the demon-

stration, but none was prosecuted. The demonstration

involved in the instant case occurred on June 2, 1979,

and led to the prosecutions now before the Court.

PSO learned of the June 2 protest in advance and

thereafter, in close coordination with local law enforce-

ment authorities, took steps to plan for it (App. 41a).

As part of this preparation, PSO officials, including Har-

vey E. Sollars, PSO’s Security Coordinator for Black

Fox, met on several occasions with Rogers County Sheriff

An.»s Ward and Deputy Sheriff Fritz Freeman. PSO

officials discussed with these law enforcement officials the

manner by which the protestors would be handled and rec-

ommended that the sheriff issue citations rather than

make custodial arrests (a plan ultimately followed by the

sheriff). In addition, PSO officials prepared a detailed

“Occupation Plan” (App. 42a) for the demonstration

that included the various options for apprehending any

trespassing parties as well as certain announcements

the sheriff was to make (App. 42a). Because, as the

trial court found, “PSO had been urhappy with the press

coverage of the October 1978 protest and wished to limit

press coverage of the June protest” (App. 42a), PSO

also developed a plan for limiting press coverage of the

demonstration, restricting the press to a “public viewing

area” a mile from the point at which the protestors later

entered.‘ This plan would have effectively killed any

timely press coverage of the event. Moreover, the pur-

pose of this restriction was to prevent the media from

being able to witness the demonstration. As the trial

court found: “The purposes for such limitation included

‘(a)] preventing the protestors from ‘collecting public-

ity,’ based on PSO’s belief that the demonstration did

not ‘deserve the -kind of importance or legitimacy that

4 PSO did not know where the protestors would enter Black Fox

and whether the press and public could view the demonstration from

the designated viewing area (App. 43a).

6

debate and news coverage would give it’ * * * and [(b)]

preventing the media participation in the trespass march

and ‘close-up shots, interviews and battle shouts by the

marchers’”’ (App. 42a-43a; record references omitted).

On the morning of June 2, 339 members of the Sunbelt

Alliance, followed by petitioners and other reporters who |

were present solely to witness the demonstration, entered

the Black Fox property and, after being admonished by a

PSO official to leave, were arrested by the sheriff.

Neither the place where the demonstrators entered Black

Fox nor the place where they were arrested could be ob-

served from the designated viewing area or from outside

the fence forming the perimeter of the site ‘App. 46a).*

Petitioners were cited for trespass, despite the fact that

they had not interfered with any construction activity

at the site or with any action of the sheriff in arresting

the members of the Sunbelt Alliance (App. 47a-48a).

The Lower Court Proceedings

After their arrest and citation, petitioners were prose-

cuted before the District Court of Rogers County for

trespassing after being warned in violation of Okla.

Stat. Ann. tit. 21, § 1835(a). Tried without a jury, peti-

tioners were convicted and were each fined $25.00. Iron-

ically, the demonstrators prosecuted for trespassing were

discharged after their trial resulted in a hung jury.

In a post-trial ruling on petitioners’ motion to dismiss,

the District Court rejected petitioners’ First Amendment

claims and entered findings of fact and conclusions of

law on the issue (App. 26a-69a). The court first con-

cluded that PSO’s actions in connection with the June 2

demonstration constituted state action for the purposes of

5 Roughly 15-20 reporters had attempted to observe the events

from the viewing area. Finding that vantage unworkable, however,

they asked for, and were granted, permission to move closer to the

demonstration site, and were taken to a position 30 yards from the

site. However, they still were not able to see all of the unfolding

events even from this position (App. 46a).

7

the federal and state Constitutions (App. 48a-49a). The

court based this conclusion upon the extensive regulatory

control and financial support of PSO by several federal

and state regulatory agencies (App. 49a; see id. at

28a-39a), as well as upon the “working relationship”

that had existed between PSO and law enforcement au-

thorities with respect to their combined efforts to control

arrest, and book the demonstrators and petitioners

(App. 49a; see id. at 41a-43a, 48a).

On the merits, the District Court recognized that “a

right of reasonable access to newsworthy events exists

under the protection of the First Amendment” (App.

52a), but ruled that petitioners’ convictions were none-

theless valid. As noted above, the court expressly found

that “(t]he intent of PSO in exercising restrictions on

the press was admitedly to limit the content of the news

which would be later distributed by the media” (App.

538a)—a design the court characterized as “ignoble” and

“hardly compatible with tne rights of a free people”

(App. 53a). Nevertheless, the court concluded that, on

balance, the restrictions imposed upon petitioners by PSO

and the police were minor, and any burden resulting

therefrom was outweighed by the state’s interests in pro-

tecting PSO’s property and in maintaining order at the

demonstration site (App. 54a-55a).

On June 22, 1983, over three years later, the Okla-

homa Court of Criminal Appeals, by a 2-1 vote, affirmed

the judgment of the Rogers County District Court. First,

the court concluded that petitioners had violated Okla.

Stat. Ann. tit. 21, §1835(a) (West Supp. 1982-1983),

by entering the PSO property at Black Fox (App. 2a-3a,

15a). In so doing, the court rejected the argument that.

because of the substantial First Amendment issues pres-

ent in the case, a higher mens rea than simple wilfulness,

as defined by Okla. Stat. Ann. tit. 21, $92 (West 1958)

(see pp. 2-3, supra), was required to sustain a conviction

under Section 1835(a) (see App. 2a-3a).

8

Turning to petitioners’ First Amendment claims, the

majority, over Judge Brett’s dissent, rejected the argu-

ment that the First Amendment protected reporters

against a criminal prosecution for peacefully entering

upon public property for the limited purpose of observ-

ing, and thereafter reporting, the demonstration held by

the Sunbelt Alliance at Black Fox (App. 4a-7a). At the

outset, the majority noted, and did not disapprove, the

District Court’s express finding that ‘“‘a sufficiently close

nexus existed between the actions of PSO and the state

and federal governments to fairly treat the actions of

PSO as the actions of government itself’ (App. 4a).

Furthermore, the majority did not disapprove the Dis-

trict Court’s finding that PSO had structured its han-

dling of the media on the day of the demonstration for

the express purpose of avoiding what it perceived would

be critical medial coverage of the event (App. 53a).° In-

stead, the majority ruled that these findings were ir-

relevant because, as a matter of law, petitioners’ First

Amendment claims lacked merit | App. 5a).

Relying upon PSO’s general media access policy,

rather than the specific motives prompting PSO on the

day in question, the majority concluded that PSO needed

to regulate access to its facility by the media to avoid

accidents and vandalism by entrants (App. 5a). The

majority concluded, by relying upon a variety of de-

cisions in which the press actively attempted itself to

provide the newsworthy events (App. 5a-6a), that the

press enjoyed no First Amendment protection for its

newsgathering function where the need to obtain in-

formation required the press to commit the technical

tort of trespass (id.). Finally, the majority ruled that

* To the contrary, the majority noted that “there is evidence that

the overall PSO press arrangements for the June event were based

in part on a desire to minimize the effectiveness of the demonstra-

tion * * *” (App. 5a).

9

neither the press nor the public had any right of access

to the PSO facility because it was neither a public street,

sidewalk, nor park (App. 6a-7a).

In dissent, Judge Brett, relying almost exclusively

upon numerous First Amendment decisions of this Court

(App. 16a-23a), concluded that the convictions violated

the Oklahoma state constitutional guarantee of freedom

of the press, and he therefore would have reversed the

convictions on this ground alone, without having to

resort to the First Amendment (App. 10a). Inter-

preting this Court’s decisions respecting access by the

press and public to government information, Judge

Brett concluded that “any press access claim to govern-

ment information is subject to a degree of restraint

dictated by” a balancing test which measures the na-

ture of the forum and information sought against the

countervailing government interests (App. 17a), and

which also takes into consideration “the purpose and

motive behind the abridging action” (App. 18a). Per-

forming that balance, he concluded that the state’s in-

terest in prosecuting petitioners to maintain order was

speculative at best, and was, in fact, belied by the Dis-

trict Court’s express findings that petitioners were in no

danger from construction hazards and the demonstra-

tion was entirely peaceful (App. 20a-21a).* He also re-

jected the state’s asserted need to protect PSO’s property

because, as the District Court had found, PSO had no

reason to believe, and did not in fact believe, that the

reporters’ presence would cause any harm to Black Fox

7 Judge Brett’s reliance upon this Court’s decisions as authority

for his interpretation of the analogous Oklahoma constitutional pro-

vision (see App. 10a n.1), however, strongly suggests that he

would have grounded his decision in the First Amendment had he

been forced to reach that issue (see App. 17a).

® “Tt could be argued that the presence of the press, by assuring

full accountability, diminished the possibility of a violent confronta-

tion and very possibly assured that everything remained peaceful”

(App. 21a).

10

or the facilities there (App. 22a). Finally, he also con-

cluded that “the illegitimate purpose of controlling the

kind of news story the press would later distribute to

the public” (App. 23a) undermined any claim that the

restriction qualified as a valid regulation of the time,

place, or manner of petitioners’ access. Accordingly, he

concluded that, on the facts of this case, the convictions

were constitutionally flawed.*

STAGES AT WHICH THE FEDERAI, QUESTIONS

WERE RAISED AND PRESERVED

Petitioners raised and argued the First Amendment

question presented herein before the District Court of

Rogers County and the Oklahoma Court of Criminal Ap-

peals, and both bodies specitically ruled on the issues

(App. 3a-7a, 50a-55a).

REASONS FOR GRANTING THE PETITION

This case presents the Court with a rare opportunity.

Demonstrations are increasing in number, size, variety,

and importance in this country. All of the problems at-

tendant upon covering them by the media are similarly

increasing. Yet, because of the confused and often hostile

atmosphere in which demonstrations take place, courts

seldom are able to sort out just what occurred, much less

the motivations of those in charge of policing them. It is

extremely difficult, therefore, for this or any court to lay

down guidelines for the press in its attempt to do its

job when these demonstrations occur.

In this case, however, the trial court was able to de-

termine with particularity all of the surrounding facts,

*“T do not say that the press has an absolute right to go on pub-

lic property to gather news. I would only hold that our criminal

trespass statute cannot be used arbitrarily and unreasonably to

exclude the press from their constitutionally protected news gather-

ing role on public property when the State does not present a

legitimate or important countervailing interest” (App. 24a).

ll

and it was also able to pinpoint just why the authorities

acted as they did. For example, its findings, taken as

a whole, clearly establish that petitioners:

—did not originate the idea, design or plan of the

demonstration ;

—did not create the incident or take the lead in

any part of it;

—followed rather than led others onto the prop-

erty;

—did not join and were never participants in the

demonstration ;

—neither instigated nor incited the participants;

—did not engage in ruse or subterfuge in order to

gain entry to the property;

—entered the property as quietly and peaceably as

the circumstances would allow;

—did not impede or interfere with the policing of

the demonstration ;

—were never obstreperous, boisterous, vocal, or

unruly;

—did not damage the property or harm any

person ;

—entered the property solely for the purpose of

covering the news event, and

—did not falsely report the event.

The trial court was also able to pinpoint the motiva-

tions of !ocal officials: to control and diminish media

coverage because of their judgment that the news event

would be over-publicized and, presumably, embarrassing

to them and to nuclear power.

Thus, this case represents a rare opportunity to spell

out what the rights and privileges are of the press and

public, and what the limitations are on the exercise of

state action, in the increasingly volatile area of public

demonstrations.

12

A number of distinct but allied lines of decision inter-

sect at the facts of this case.

The Court has recognized, for example, that reasonable

regulations of the time, place or manner of communica-

tion are valid only so long as those restrictions are not

based upon the content or subject matter of speech. See,

e.g., Consolidated Edison Co. v. Public Service Comm'n,

447 U.S. 580, 535-537 (1980). The Court has also ruled

that newsgathering by the media is entitled to some de-

gree of constitutional protection. F.g., Branzburg V.

Hayes, 408 U.S. 665, 681, 707 (1972); Pell v. Procunier,

417 U.S. 817, 883 (1974). More recently, in the con-

text of public trials, the Court has given life to the doc-

trine that the First Amendment affords some measure of

constitutional protection to the public and to its agent,

the press, with regard to the obtaining of information

necessary for informed public decisionmaking. Richmond

Newspapers, Inc. V. Virginia, 448 U.S. 555 (1980) ; Globe

Newspaper Co. Vv. Superior Court, 102 S, Ct. 2613 (1982).

And numerous lower federal and state courts have ruled

that otherwise-applicable state trespass laws must give

way in the face of more important public interests, like

those present here. See cases collected at 67 Op. Md.

Att’y Gen. No. 82-024 (July 19, 1982).

The instant case presents elements of each of these doc-

trines and represents the logical next step in their

development.

1. Thus, for example, the restrictions on the press in

this case cannot be justified on the ground of prevention

of violence. This is so not only because violence was not

present or imminent but because the motivation for the

restrictions was otherwise. The reason the press was re-

stricted was so that publicity would be curtailed. There

could hardly be a restriction more directly related to the

content of speech than this one. Surely, if the police had

said to petitioners, “You can enter the property only so

long as you agree not to publish,” or “* * * only so long

as you agree to report the event in a favorable light,” or

13

“* * * only so long as we can approve in advance what

you write,” there would be no question but that the re-

striction would be struck down. Yet the situation here is

really no different in purpose and effect. The authorities

having determined that (a) they did not wish unfavor-

able publicity; (b) the demonstration was, in their eyes,

an untoward event; and, therefore, (c) any publicity sur-

rounding the event was bound to be unfavorable, they

simply precluded the press from following and covering

the event on pain of criminal prosecution. This is the

very type of censorship precluded by the Consolidated

Edison line of cases.’”

2. Well before Richmond Newspapers and Globe News-

paper explicitly anchored in the First Amendment the

public’s interest in obtaining from government informa-

tion essential for participatory democracy, this Court had

often recognized that the central and overriding subject of

the First Amendment was its protection of the public’s

free discussion and receipt of information and opinions

respecting government. See, e.g., Mills v. Alabama, 384

U.S. 214 (1966). Having pointed to “the paramount pub-

lic interest in a free flow of information to the people con-

cerning public officials, their servants” (Garrison v. Loui-

siana, 879 U.S. 64, 77 (1964)), the Court took steps to

make certain that this interest was neither arrested nor

chilled by prior restraints, civil damage suits, or after-

the-fact criminal prosecutions. See, e.g., Near v. Minne-

sota ex rel. Olson, 283 U.S. 697 (1931); New York Times

Co. v. Sullivan, 376 U.S. 254 (1964); Garrison v. Loui-

siana, supra. Moreover, the Court had also ensured that

public discussion of the criminal process—indisputably,

the function of government most coercive of its citizens

and, therefore, most in need of scrutiny—would be wholly

1° Since the state may not enact, it a fortiori may not enforce, a

statute with the intent to censor or penalize the press for perform-

ing its constitutionally recognized function. Minneapolis Star &

Tribune Co. v. Minnesota Comm'r of Revenue, 108 S. Ct. 1865, 1369-

75 (1983); Grosjean v. American Press Co., 297 U.S. 238, 250

(1986).

14

unfettered, absent the most exacting showing of need to

limit cebate. See, e.g., Smith v. Daily Mail Publishing

Co., 443 U.S. 97 (1979) (publication of juvenile records) ;

Cow Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

(publication of the names of victims) ; Craig v. Harney,

331 U.S. 367 (1947) (criticism of ongoing trial).

Richmond Newspapers reinforced and augmented that

protection by assuring that the public would have access

to the information necessary to meaningful discussion of

government. Consistent with the Framers’ belief that

public access to information respecting such matters was

essential to participatory democracy," Richmond News-

papers and Globe Newspaper recognized that the struc-

tural role played by the First Amendment in protecting

public oversight of government affairs entitled the public

and press to attend criminal trials. These decisions bar

the government ‘rom shutting off the public’s access to

this aspect of the criminal process absent a compelling

governmental interest. expressed in specific findings to

that effect, narrowly tailored to serve that particular in-

terest. Globe Newspaper, 102 S. Ct. at 2619-20; Rich-

mond Newspapers, 448 U.S. at 580-581 (plurality opin-

ion) ; id. at 597-598 & n.24 (Brennan, J., concurring in

the judgment).

These cases acknowledged that, at least with respect to

the most open facet of the criminal process, the First

11 See, ¢.g., Proposed Bill for the More General Diffusion of

Knowledge (T. Jefferson), reprinted in 2 The Writings of Thomas

Jefferson 220-221 (P. Ford ed. 1893) (“{W)hereas * * * experience

hath shewn, that even under the best forms, those entrusted with

power have, in time, * * * perverted it into tyranny; * * * it is

believed that the most effectual means of preventing this would be,

to illuminate, as far as practicable, the minds of the people at

large * * *”); Letter from James Madison to W.T. Barry, Aug. 4,

1822, in 9 Writings of James Madison 108 (G. Hunt ed. 1910) (“A

popular Government, without popular information, or the means of

acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps

both. Knowledge will forever govern ignorance: And a people who

mean to be their own Governors, must arm themselves with the

power which knowledge gives’’).

15

Amendment not only protects the publie’s ability to en-

gage in discourse but also ensures that the governmental

institutions responsible therefore are kept within the

ambit of public scrutiny. In this case, the question is

whether the public, or the press as agent of the public,

has a similar right of access to the information necessary

to form responsible judgments about the actual operation

of an anterior stage of that process.

8. (a) This question is of substantial interest to the

public and is of especial interest to the press because of

the media’s institutional role in obtaining and disseminat-

ing information to the public. The wisdom, and often-

times the legality,’* of the decision to commit the Nation’s

resources to, and subject future generations to the haz-

ards of, nuclear power are, of course, matters of intense

legislative, administrative, and scholarly debate.* Often-

times, the parties attempting to influence the outcome of

that debate resort to drastic means to make their position

heard. Demonstrations of the type that took place on

PSO’s Black Fox property are not isolated incidents.”

12 See, e.g., Baltimore Gas & Elec. Co. v. NRDC, 103 8S. Ct. 2246

(19838) ; Pacific Gas & Elec. Co. v. State Energy Resources Conser-

vation & Development Comm'n, 103 S. Ct. 1713 (1983) ; Duke Power

Co. Vv. Carolina Envt'l Study Group, Inc., 488 U.S. 59 (1978).

13 See, e.g., NRDC Vv. NRC, 685 F.2d 459, 525-526 n.60 (D.C. Cir.

1982) (Wilkey, J., concurring in part and dissenting in part) (col-

lecting administrative and legislative studies of the problems of

nuclear waste disposal), rev'd sub nom. Baltimore Gas & Elec. Co.

v. NRDC, supra; Report of the Energy Project at the Harvard

Business School 127-166 (R. Stobaugh & D. Yergin eds. 1979);

S. Glasstone & W. Jordan, Nuclear Power and its Environmental

Effects (1980).

4 For example, recent television footage of protestors pushing

threugh the gates and onto the grounds of the Russian Consulate

in Glen Cove, New York, following the shooting down of a Korean

passenger plane, showed television cameramen being virtually

carried onto the property in the midst of the crowd. Regardless of

how one views this forced entry, it was certainly a newsworthy

event that warranted coverage. And it (a) the police had used

excessive force against the protestors once they were inside the

16

To the contrary, such assemblies, whether performed on

government property or in the streets and parks, whether

accomplished under a permit or by means of trespass, and

whether accompanied by violence or done entirely peace-

fully, have become an established part of the domestic

political scene since the Boston Tea Party in 1773, and

increasingly so in recent years.

While demonstrations like that taking place at Black

Fox are normally peaceful and do not involve the partic-

ipants’ trespass upon public property, that is not always

the case. But the need for complete information as to the

actions of the participants in expressing their views, and

the police in attempting to contro] the protest or squelch _.

a disturbance, is the same. Demonstrations involving —

trespassing are of no less importance to the public than

those occurring entirely and lawfully upon the public

streets and parks. Whether civil disobediencw is seen as

enobling or sullying a speaker’s cause, the fact of that

disobedience is plainly of importance to the public debate

over a governmental issue, particularly one of such press-

ing importance as is the issue underlying the events at

Black Fox. The question presented by this case. therefore,

is one never before fully addressed by the Court but one

which nevertheless is likely to recur with increasing regu-

larity. It is of sufficient public importance to warrant

this Court’s review, particularly since it occurs against

the background of an alleged “offense” that already

stretches constitutional limits."

grounds, or (b) the protestors had wantonly destroyed property,

that too should have been covered even if it meant the reporters

had to follow the crowd.

14° The Court of Criminal Appeals, in response to the argument

that petitioners “lacked the requisite criminal intent since they en-

tered the land only to gather news, not to violate the rights of the

landowners or engage in other unlawful behavior” (App. 2a), con-

cluded that petitioners “need not have intended to violate any laws

or injure the landowner in order to have committed trespass” (App.

8a). As thus interpreted, Oklahoma's criminal trespass statute does

17

(b) Limited public or press access to property to ob-

serve police regulation of demonstrations is also necessary

to afford the public the opportunity to engage in effective

oversight of police practice in handling such matters. Ac-

cess to criminal trials is plainly insufficient in this regard.

The everyday role of the police in maintaining order gen-

erally escapes judicial scrutiny because the obstacles to

litigation over such police practices have limited judicial

review typically to only those aspects relating to the ac-

quisition of prosecution evidence."* For various reasons,"

not require any evil intent. Rather, it merely requires the antece-

dent intent to commit an act.

This Court has stated that “[c)riminal liability is normally based

upon the occurrence of two factors, ‘an evil meaning mind [and] an

evil-doing hand... .’" United States v. Bailey, 444 U.S. 394, 402

(1980), citing Morisette v. United States, 342 U.S. 246, 251 (1952).

Thus, in Smith v. California, 361 U.S. 147 (1959), the Court noted

that while states are free to create strict criminal liability by dis-

pensing with a scienter element, there still exist constitutional

limitations on the exercise of their police power, particularly where

the elimination of « scienter requirement “may tend to work a

substantial restriction on the freedom of speech and of the press.”

Id. at 150. See also Bouie Vv. City of Columbia, 378 U.S. 347, 358

(1964) (“[u]nless a trespass is ‘committed under such circumstances

as to constitute an actual breach of the peace, it is not indictable

at common law, but is to be redressed by a civil action only’”; em-

phasis in original) ; Martin v. City of Struthers, 319 U.S. 141, 147-

149 (1948) (ordinance making it unlawful trespass to knock on

doors and ring doorbells to distribute literature held in conflict

with freedom of speech and press).

These same constitutional guarantees should prevent the State

of Oklahoma from imposing criminal sanctions on reporters who

had nwo evil intent to trespass or even to participate in a demon-

stration, but who merely intended to follow the course of events as

they were occurring and report accurately thereon.

16 See, e.g., Amsterdam, The Supreme Court and the Rights of

Suspects In Criminal Cases, 45 N.Y.U.L. Rev. 785, 786-788 (1970) ;

Goldstein, Administrative Problems in Controling [sic] the Ezer-

cise of Police Authority, 58 J. Crim. L.C. & P.S. 160, 168 (1967).

See also Rizzo Vv. Goode, 423 U.S. 362 (1976).

17 See, e.g., Rawlings v. Kentucky, 448 U.S. 98 (1980); United

States v. Salvucci, 448 U.S. 88 (1980); Rakas v. Illinois, 489 U.S.

18

the instances in which Richmond Newspapers and Globe

Newspaper ensure that the public’s oversight of the crim-

inal process will be adequate are often quite restricted.

In addition, the likelihood that any police practices giving

rise to litigated issues will be open to the public is less-

ened further still by the commonplace practice of litigat-

ing such matters at pretrial suppression hearings, from

which the public is frequently excluded. See Gannett Co.

Vv. DePasquale, 443 U.S. 368 (1913). Finally, the defi-

ciencies in tort remedies, whether for damages or injunc-

tions, as a supplement to the exclusionary rule are, by

now, well-known,’* and are therefore unlikely to bring to

light a significant, additional number of instances of po-

lice illegality.

At the same time, however, the public need for complete

information as to the nature and extent of such law en-

forement operations cannot be underestimated. A num-

ber of factors—including the decentralized nature of most

police functions'® and, in some instances, the racial

animus prompting or caused by such activity *°—manifest

a need for public oversight of such day-to-day police func-

tioning. Since the citizenry is ultimately responsible for

the enactment of the penal laws enforced by the police, the

public, in order effectively to discharge that responsibility,

must be able to obtain complete and accurate information

respecting the actual conduct of police affairs. This is

128 (1978); United States v. Caceres, 440 U.S. 741 (1979). See

also United States v. Payner, 447 U.S. 727 (1980).

18 See, e.g., Los Angeles v. Lyons, 103 S. Ct. 1660 (1983); Rizzo

Vv. Goode, supra; Bivens v. Siz Unknown Federal Narcotics Agents,

408 U.S. 388, 421-422 (1971) (Burger, C.J., dissenting). See also

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.

Rev. 349, 360 (1974); Foote, Tort Remedies for Police Violations

of Individual Rights, 39 Minn. L. Rev. 498 (1955).

19 See, e.g., K. Davis, Discretionary Justice 222 (1969).

2 See, e.g., National Advisory Comm'n on Civil Disorders, Re-

port 98 (1968); The President’s Comm'n on Law Enforcement and

Administration of Justice, Task Force Report: The Police 146-148

(1967) ; President’s Comm'n on Crime in the District of Columbia,

Report on the Metropolitan Police Dep’t 62-65 (1966).

19

particularly true where, as here, there exists the chance

that the police may be called upon to exercise force in

response to the actions of fellow citizens over which the

government has granted the police a monopoly. The need

for the public to make informed judgments with regard to

such matters, we submit, outweighs the incremental and,

in this case, nonexistent burden upon state interests re

sulting from the harmless actions of petitioners in enter-

ing upon the Black Fox grounds.

(ce) Petitioners do not claim that their right of access

to the grounds at Black Fox is absolute or that anyone

claiming an interest in the events taking place in circum-

stances like those here is entitled to access for any reason.

Petitioners do not dispute the state’s need to maintain

order and prevent violence, and do not challenge the

state’s interest in protecting the rights of property

owners. Petitioners’ claim is quite narrow. There is no

claim in this case of a First Amendment right to enter

public or private property at all times and under all cir-

cumstances. Nor is there any question as to the power of

law enforcement authorities to prohibit access during

riots or other institutional emergencies, or to prohibit in-

terviews with persons who are dangerous or who present

other similar, specific problems. None of those circum-

stances obtained at Black Fox on June 2, and the Court’s

decision here therefore need not take into account the

state’s interests in such circumstances.

This case, therefore, does not involve a myriad of prob-

lems raised in other cases dealing with press access, in-

cluding invasions of privacy,” interference with the con-

duct of a trial,” attempts to obtain national security in-

formation,” and a reporter’s active participation in an

21 Compare Commonwealth v. Wiseman, 249 N.E.2d 610 (Mass.

1969), cert. denied, 398 U.S. 960 (1970).

22 Compare Estes V. Texas, 381 U.S. 582 (1965).

23 Compare Zemel V. Rusk, 381 U.S. 1, 16 (1965).

20

incident himself in order to create a news story that

would not otherwise exist.”

What petitioners do claim is the right to reasonable

access to property peacefully to witness a newsworthy

demonstration that has already entered upon the prop-

erty, absent other exigent circumstances. And, in partic-

ular, they claim the right to be free from restraints upon

such access which are specifically designed to impede their

public function of gathering news about matters of public

concern—an intent on the part of authorities rightfully

labeled “ignoble” by the trial court. The question pre-

sented here can therefore be decided quite narrowly, de-

spite its extraordinary importance.

CONCLUSION

For each of the reasons outlined above, we urge the

Court to grant certiorari and reverse the judge of the

Oklahoma Court of Criminal Appeals.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.*

PAUL J. LARKIN, JR.

HOGAN & HARTSON

(a partnership including

professional corporations)

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

ROBERT HAGER

1324 North Capitol Street

Washington, D.C. 20002

(202) 797-8106

Attorneys for Petitioners

* Counc” of Record

*% Compare Branzburg v. Hayes, supra.