By: M.L. Stein
Federal appellate court overturns ruling that said journalists have a First Amendment right to view the entire death-by-injection execution process
THE RULING OF a federal judge who said reporters should be allowed to witness the entire lethal injection execution procedure has been overturned by an appellate court in San Francisco.
The higher court last week conceded the press’ constitutional right to gather news and information but declared that such protection “is not without limits.” It cited a 1974 Supreme Court decision to support its contention that “the First Amendment does not guarantee the press a constitutional right of special access of information not available to the public generally.” The issue is the crux of a suit against the California Department of Corrections by the California First Amendment Coalition and the Society of Professional Journalists. In a longstanding dispute with the department, the media has sought permission to witness the entire execution procedure. The state seeks to bar reporters and the public as witnesses to an execution until after the condemned person is strapped into the gurney, intravenous tubes are inserted into his arms and guards have left the chamber.
Federal District Judge Vaughn Walker, who originally ruled in favor of the media plaintiffs, was instructed by the higher court to rule in favor of the defendants, Arthur Calderon, director of the Department of Corrections, and San Quentin Prison warden James Gomez.
In their complaint, the media organizations argued that by being prevented from seeing the entire execution sequence, the state imposes a kind of censorship that prevents reporters from completely doing their job. The plaintiffs noted that it takes approximately 20 minutes to prepare a prisoner for execution during which the press is barred. The purpose, Calderon claimed, is to shield execution team members, who might, along with their families, suffer harassment if they were identified.
Writing for a three-judge panel of the 9th Circuit U.S. Court of Appeals, Judge Michael Daly Dawkins said, “We agree that executions are unquestionably matters of great public importance,” and that “more information leads to a better informed public.” But the court rejected the argument that the protections of the First Amendment are “dependent upon the notoriety of the death penalty,” he said.
Dawkins wrote that Walker is the only district judge in the land who has held that the First Amendment allows the press or public to view executions.
CFAC executive director Terry Francke told E&P that an appeal to the Supreme Court is under consideration if the appellate court does not grant a rehearing. “The decision did not address at all our rationale for complete access to executions,” he said. “The court treated our complaint as a simple request for prison access. This is not merely a question of getting into a prison to, say, interview an inmate. This is an entirely different category. An execution is an extreme culmination of the criminal justice system. It’s important that readers, whether they are for or against capital punishment, know what goes on in the execution process.”
Francke termed Calderon’s fear that the identity of execution team members may be disclosed by press witnesses as “baloney.”
“It has never happened and never will happen,” he asserted. n
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?(copyright: Editor & Publisher May 9, 1998) [Caption]