Reply Brief — Jersawitz v. Noonan

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Supreme Court, US, |

. FILED

@, OCT 3 1966

No. 86-91 JOSEPH F. SPANIOL, JR,

In The —

Supreme Court of the United States

October Term, 1986

JACK JERSAWITZ,

Petitioner,

THE WARDEN OF ATLANTA PENITENTIARY,

WILLIAM NOONAN, AND THE

UNITED STATES BUREAU OF PRISONS,

Respondents.

Lt,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITIONER’S REPLY MEMORANDUM

ts,

JEFFREY O. BRAMLETT

Bondurant, Mixson & Elmore

2200 First Atlanta Tower

Two Peachtree Street, N.W.

Atlanta, Georgia 30383-4501

(404) 581-5200

Counsel of Record

OF COUNSEL:

NORMAN P. STEIN, ESQ.

Post Office Box 1435

University, Alabama 35486-1435

(205) 348-1136

MICHAEL J. GERHARDT, ESQ.

Miller, Cassidy, Larroca & Lewin

2555 M Street, N.W.

Suite 500

Washington, D.C. 20047

(202) 293-6400

October 2, 1986

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF AUTHORITIES

Page

CasEs:

City of Los Angeles v. Preferred Communications,

Inc., 54 U.S.L.W. 4542 (June 2, 1986) 2

Capital Cities Media, Inc. v. Chester, No. 85-5132

(3d Cir., July 21, 1986) (en banc) 1, 2, 4, 6

Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) WW. 2, 4,6

Quad-City Community News Service, Inc. v. Jeb-

ens, 334 F. Supp. 8 (S.D. Iowa 1971)

Borreca v. Fasi, 369 F. Supp. 906 (D.C. Hawaii 1974) 2

Consumers Union of United States, Inc. v. Peri-

odical Correspondents’ Ass’n., 365 F. Supp. 18

(D.D.C. 1973), rev’d on other grounds, 515 F.2d

1341 (D.C. Cir. 1975), cert. denied, 423 U.S.

1051 (1976)

Houchins v. KQED, Inc., 438 U.S. 1 (1978)

Lewis v. Baxley, 368 F. Supp. 768 (M.D. Tenn. 1965)

Kovach v. Maddua, 238 F. Supp. 835 (M.D. Tenn.

1965) 2

Cable News Network, Inc. v. ABC, 518 F. Supp.

1238 (N.D. Ga. 1981) 2

Westinghouse Broadcasting v. National Trans-

portation Safety Board, 8 Media L, Rptr. 1177

(D.C. Mass. 1982) .

United States v. Diebold, Inc., 369 U.S. 654 (1962) 0. = 4

we co b>

CONSTITUTION :

First Amendment, U.S. Comst. .222cc:cccccnccccocsnecrnnersnennen 2, 3, 5, 6

Fourteenth Amendment, U.S. Const. .. ’ 5

Text:

1 Annals of Congress 432-42 (J. Gales ed. 1789),

reprinted in 5 The Writings of James Madison

Se i ME Us ND ediidtttitseceetercitine >» =

No. 86-91

In The

Supreme Court of the United States

October Term, 1986

t).

JACK JERSAWITZ,

Petitioner,

THE WARDEN OF ATLANTA PENITENTIARY,

WILLIAM NOONAN, AND THE

UNITED STATES BUREAU OF PRISONS,

Respondents.

YY.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

oft.

PETITIONER’S REPLY MEMORANDUM

Five days after Petitioner filed for certiorari in this

Court, the Third Circuit Court of Appeals, sitting en

banc, issued its opinion in Capital Cities Media, Inc. v.

Chester.. The Third Cireuit’s decision in Capital Cities

Media conflicts in principle with the Eleventh Circuit’s

decision here. This recent development and the Respon-

dent’s contention that certiorari should be denied because

Mr. Jersawitz ‘‘is not a bona fide journalist’ deserve

careful examination.

. No. 85-5132 (3d Cir., July 21, 1986) (en banc).

Memorandum for the Respondents in Opposition at 5, n. 2.

1. The Third Circuit’s Decision in Capital Cities

Media Conflicts In Principle With The Elev-

enth Circuit’s Treatment of Mr. Jersawitz’

Equal Protection Claim.

Despite the glaring conflict in principle between this

case and the decisions of this Court,’ the Third Circuit,‘

the District of Columbia Circuit,> and various district

courts,® the Respondents oppose review by certiorari. The

equal protection analysis applied by the Eleventh Circuit

in this case squarely conflicts with the recent decision of

the Third Circuit in Capital Cities Media.

In Capital Cittes Media, a Pennsylvania newspaper

sued for access to information in the hands of the Pennsy!]-

vania Department of Environmental Resources (“D.E.

R.’’). Like Mr. Jersawitz, the newspaper advanced two

claims: (1) a First Amendment right-of-access claim; and

? City of Los Angeles v. Preferred Communications, Inc., 54

U.S.L.W. 4542 June 2, 1986).

4 Capital Cities Media, Inc. v. Chester, No. 85-5132 (3d Cir.,

July 21, 1986) (en banc).

$ Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

6 Quad-City Community News Service, Inc. v. Jebens, 334

F. Supp. 8, 14-16 (S.D. lowa 1971). See also Borreca v. Fasi, 369

F. Supp. 906 (D.C. Hawaii 1974); Consumers Union of United

States, Inc. v. Periodical Correspondents’ Ass’n., 365 F. Supp. 18

(D.D.C. 1973), rev’d on other grounds, 515 F.2d 1341 (D.C. Cir.

1975), cert. denied, 423 U.S. 1051 (1976); Lewis v. Baxley, 368

F. Supp. 768 (M.D. Tenn. 1965); Kovach v. Maddux, 238 F. Supp.

835 (M.D. Tenn. 1965); Cable News Network, Inc. v. ABC, 518

F. Supp. 1238 (N.D. Ga. 1981); Westinghouse Broadcasting v.

National Transportation Safety Board, 8 Media L. Rptr. 1177 (D.C.

Mass. 1982).

(2) an equal protection claim. The district court dis-

missed both claims.

The Third Cireuit agreed that the First Amendment

conferred no right of access to the sought-after informa-

tion. Noting this Court’s holdings in Pell and Sazbe, the

Third Cireuit ruled that the newspaper had no greater

right of access to the information than did the public gen-

erally.’

However, the Third Circuit vacated the dismissal of

the newspaper’s equal protection claim. The Third Circuit

held:

We believe the allegations, accepted by the dis-

trict court as setting forth the equal protection claim,

may be read to claim that the D.E.R. has been dis-

criminating between news-seekers, granting access to

those favorably disposed to it while denying access to

those whom it considers unfriendly. Moreover, at oral

argument before us, the Times leader represented that

there was reason to believe that there had been D.E.R.

discrimination between newsgatherers since the dis-

trict court’s decision. Gtven the seriousness of this

claim and the public interest in having it resolved on

its merits, we conclude that the judgment should be

vacated and the case remanded to the district court.®

Like the plaintiff in Capital Cities Media, Mr. Jers-

awitz has challenged governmental discrimination among

newsgatherers. The Respondents admit that they discrim-

inated against Mr. Jersawitz solely on the basis of his

employment status.? Without the slightest inquiry into

’ Slip Op. at 20.

° Slip Op. at 28 (emphasis added).

9 R. 127.

whether he presented a security risk,’ the Respondents

denied him access to interview a critic of U. S. foreign

policy.!! These uncontroverted facts support the inference”

that the government is ‘‘discriminating between news-

seekers, granting access to those favorably disposed to

it while demying access to those whom it considers un-

friendly.’’

Under the Third Circuit’s analysis in Capital Cities

Media, “the seriousness of this claim and the public inter-

est in having it resolved on the merits” warrant the ap-

plication of stringent equal protection analysis. Yet, the

Eleventh Circuit cavalierly affirmed summary judgment

against Mr. Jersawitz’ equal protection claim on the the-

ory that it lacked ‘‘constitutional magnitude.’’”

2. Mr. Jersawitz’ Journalistic Endeavors De-

serve Equal Protection.

The Respondents strain to justify this extraordinary

treatment of a valid equal protection claim by arguing that

—in contrast to freelancer Robert Sherrill (the plaintiff

who challenged his exclusion from White House press fa-

cilities in Sherrill v. Knight)—Mr. Jersawitz is not “a

bona fide journalist.’’* The Respondents’ argument sug-

od R. 127-128.

- R. 8-9.

2 Despite this inference, the district court disposed of Mr.

Jersawitz’ claim on a motion for summary judgment. 610 F.

Supp. at 538. This grant of summary judgment was improper

because “[OQ]n summary judgment the inferences to be drawn

from the underlying facts . . . must be viewed in the light most

favorable to the party opposing the motion.” United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

- 783 F.2d at 1534.

“ Memorandum for the Respondents in Opposition, at 5,

n. 2.

)

gests that this equal protection challenge should be re-

solved by the rote application of a Latin label.

This Court has repeatedly observed that equal pro-

tection guarantees applied in the context of newsgathering

protect the substance of what journalists do, not the status,

class, or profession of journalists.'* This interpretation is

perfectly consistent with James Madison’s articulated pur-

pose in drafting the speech-press clause.'®

The record here shows what Mr. Jersawitz does: he

produces television public affairs programming for a

potential audience of 115,000 television viewers in the city

of Atlanta.'"? Some viewers rely on Mr. Jersawitz’s pro-

gramming for information of unique importance to citizens

who participate in the process of informed and enlightened

self-government.'* His efforts to gather and to broadcast

information regarding the views of a critic of government

policy are exactly what the First Amendment was de-

signed to protect.

That Mr. Jersawitz performs his journalistic endeav-

ors without pecuniary motive hardly reflects on his “bona

15 The First and Fourteenth Amendments do not guarantee

the public a right of access to information generated or con-

trolled by government, nor do they guarantee the press any

basic right of access superior to that of the public generally.

The Constitution does no more than assure the public and the

press equal access once government has opened its doors.

Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart, J.,

concurring).

» Madison justified the speech-press clause as a means of re-

straining the abuse of power by public officials. 1 Annals of

Congress 432-42 (J. Gales ed. 1789), reprinted in 5 The Writings

of James Madison 370-89 (G. Hunt ed. 1904).

wad R. 110.

- R. 115-116.

fides” as a journalist. More importantly, the absence of

commercial purpose in no way undermines the constitu-

tional protection accorded the flow of information gener-

ated by Mr. Jersawitz’ efforts. Therefore, one is hard

put to reconcile the Eleventh Circuit’s conclusion that

press access regulations designed to assure “objective or

accurate reporting by responsible newsmen” present no

claim of “constitutional magnitude” with the Third Cir-

cuit’s contrary holding in Capital Cities Media or the D.C.

Yireuit’s contrary holding in Sherrill.

The Respondents urge this Court to rationalize this

significant conflict by adopting the government’s defini-

tion of “bona fide journalist”: one who gathers and re-

ports news with commercial intent or pecuniary motive.

The First Amendment supports no such distinction. The

equa! protection clause forbids the government from en-

forcing such a distinction absent compelling justification.

In this case, the government has failed to establish even a

rational justification. Thus, the decision below warrants

review.

Respectfully submitted,