Death Watch: Why America Was Not Allowed to Watch Timothy Mcveigh Die

• Publication year: 2001
• Citation: Vol. 3 No. 2001

Robert Perry Barnidge, Jr.⁰

I. Introduction

Timothy J. McVeigh was sentenced to death on August 14, 1997, for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, which left 168 people dead.¹ Although United States Attorney General John Ashcroft explained that "all the citizens of the United States were victims of the crimes perpetrated by Mr. McVeigh,"² all such victims were not allowed to watch McVeigh's execution by lethal injection at the United States Penitentiary at Terre Haute (USPTH) on June 11, 2001.³

Partly because of the logistical difficulties in accommodating the wishes of the survivors and the victims' families in personally viewing McVeigh's execution, Ashcroft approved of a setup whereby a closed circuit transmission of McVeigh's execution would be available exclusively to "authorized survivors and family members of victims, and designated counselors and government representatives."⁴ Among the stipulations were that the broadcast would be contemporaneous, instantaneous, and without recording of any kind and that it would utilize encryption technology with state-of-the-art videoconferencing over high-speed digital telephone lines.⁵

In Entertainment Network, Inc. v. Lappin,⁶ Internet content provider Entertainment Network, Inc. (ENI) requested permission to record and simultaneously broadcast McVeigh's execution via the Internet or, alternatively, to gain access to the live audiovisual transmission of the execution for the purpose of broadcasting that material.⁷ The Bureau of Prisons (BOP) declined ENI's request on the grounds that 28 C.F.R. § 26.4(f)⁸ prohibited such recording.⁹ Section 26.4(f) states that, except as otherwise ordered by a court, "[n]o photographic or other visual or audio recording of . . . [an] execution shall be permitted."¹⁰ ENI's challenge was "to its face," meaning that, if successful, the section 26.4(f) ban could no longer be enforced against any member of the press.¹¹

In upholding the constitutionality of the regulation, the court found that it was content neutral and gave the media sufficient alternative means of informing the public about executions. Even were this not the case, overriding penological concerns and a general deference to the prison system still required that the ban be enforced.¹²

This note examines the reasons why the ENI court upheld the ban on the press's ability to record executions. After explaining the court's reasoning, it will discuss how, although the ruling was not surprising, the court erred in finding section 26.4(f) to be content neutral and gave unwarranted, uncritical weight to the government interest in upholding the ban. Given the terrorist events in New York City and Washington, D.C., on September 11, 2001, this note also examines the press's rights of access in the event that suspected terrorist Osama bin Laden should be somehow captured, tried in an American court, and executed. It will finally present a number of compromises that would have been more appropriate on the facts of ENI.

II. Press Not Guaranteed First Amendment Rights of Access Greater than Public

The ENI court stated that the First Amendment rights of the press to information must be analyzed in relation to information available to the general public.¹³ The court relied on Garrett v. Estelle¹⁴ in this part of its analysis.¹⁵ In Garrett, a news reporter, Garrett, sought permission from the Texas Department of Corrections to film interviews with inmates on death row and to film a prisoner's execution, the first execution under Texas' new capital punishment statute.¹⁶ Garrett sought an injunction to compel Texas not to curtail his interviewing of inmates on death row or his filming of executions.¹⁷ The district court, in a preliminary injunction, held that article 43.17 of the Texas Code of Criminal Procedure¹⁸ violated the First and Fourteenth Amendments, that the press should be allowed to visit death row, that the provisions allowing for a press pool at executions should be reinstated, and that Garrett, as a member of the press, should be allowed to film executions.¹⁹

Texas appealed the district court's order that required it to allow Garrett to film executions.²⁰ It relied on recent Supreme Court decisions which held that the press's right of access to prisons or prisoners does not exceed the general public's right and contended that "since the public has no right under the first [sic] amendment [sic] to film executions, a member of the press has no such right."²¹

In particular, the Garrett court relied on Saxbe v. Washington Post Co.²² and Pell v. Procunier²³ for the general principle that the press's right of access to information is not greater than the general public's right and that the government is not obligated to give the press access to information not available to the general public.²⁴ Put differently, the First Amendment rights of the press do not "accompany the press where the public may not go."²⁵

Pell also supports the proposition that a state is not required to give the press rights of access to information greater than those given to members of the public.²⁶ In Pell, members of the press argued that section 415.071 of the California Department of Corrections Manual²⁷ was unconstitutional because it prevented them from conducting in-person interviews with specific prison inmates and amounted to state interference with the press.²⁸ However, the Court reasoned that because section 415.071 prohibited both the press and the public from conducting such interviews, it was consistent in its prohibition, did not discriminate against the press, and did not violate the First and Fourteenth Amendments.²⁹

United States v. McDougal³⁰ also supports the proposition that the First Amendment does not grant the press rights of access greater than those of the general public.³¹ In McDougal, press organizations and a non-profit citizens' group sought physical access to the videotaped recording of President Bill Clinton's deposition in an underlying criminal case.³² The district court denied the plaintiffs' request for the videotapes,³³ and its ruling to withhold rights of access to the videotapes for the press was affirmed by the Eighth Circuit.³⁴ The McDougal court, like the ENI court, stated that the First Amendment does not guarantee the press greater rights than those afforded the general public.³⁵ According to the McDougal court, "members of the public, including the press, were given access to the information contained in the videotape. Therefore, appellants received all the information to which they were entitled under the First Amendment."³⁶

In summary, the ENI court cited two cases involving press rights of access to prisons, Garrett and Pell, and one case dealing with press rights to material not available to the general public in a non-prison context, McDougal, for the proposition that the First Amendment does not guarantee the press rights of access that exceed the rights of access afforded the general public.³⁷ Since members of the general public were prohibited from recording McVeigh's execution, the court reasoned that the state was not required to give a member of the press, ENI, this right of access. The First Amendment did not require it; ENI was not guaranteed it.

III. Government Regulation Must Be Content Neutral

ENI also argued that by preventing the press from making photographic, audio, and visual recordings of executions, section 26.4(f) was not content neutral and, thus, was subject to a strict scrutiny analysis.³⁸ Essentially, ENI stated that the regulation was an attempt by the government to censor content in violation of the First Amendment. ENI argued that the content of written and verbal accounts of an execution differs in a substantive way from the photographic, audio, and visual recordings prohibited by section 26.4(f),³⁹ in that "human accounts are subject to 'spin' and perspective, whereas the broadcast is not. ENI argues, therefore, that the BOP is denying the public information based on its content."⁴⁰ However, the court disagreed with ENI's understanding of the word "content" and found no First Amendment violation on such grounds.⁴¹

The ENI court adopted the test set forth in Ward v. Rock Against Racism⁴² to determine whether a government regulation is content neutral.⁴³ According to the test, the "principal inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys . . . . [t]he government's purpose is the controlling consideration."⁴⁴ Essentially, to qualify as content neutral, a government regulation must be "justified without reference to the content of the speech [and must serve] . . . purposes unrelated to the content, . . . even if it has an incidental effect on some speakers or messages but not others."⁴⁵

According to the court, section 26.4(f) did not discriminate based on content in its ban on photographic, audio, and visual recordings of executions because, in this case, "the medium is not the message."⁴⁶ The court held that, despite the ban, "the public can be fully informed; the free flow of ideas and information need not be inhibited."⁴⁷

JB Pictures, Inc. v. Department of Defense⁴⁸ cited by the ENI court,⁴⁹ explores the content neutrality principle. JB Pictures, Inc. centered around a military policy that, in the context of Operation Desert Storm, prevented press access to the arrival of the remains of fallen soldiers at interim stops or ports of entry.⁵⁰ The plaintiffs argued that this ban amounted to "impermissible 'viewpoint discrimination.'"⁵¹ The prohibition on their presence at the unloading of the caskets, the plaintiffs asserted, was unconstitutional content-based discrimination.⁵² They argued that such coverage conveys a certain content, apparently a content "necessarily laden with anti-war implications,"⁵³ and because of this, prohibiting such press coverage was the equivalent of shielding...