Court upholds ban on death-row interviews

Lucas Tanglen | Newsgathering | Feature | June 25, 2009

A federal appeals court on Thursday upheld a regulation barring prisoners on death row in the federal system from meeting with reporters. In doing so, a majority of Seventh Circuit judges set a low bar for determining when an inmate's constitutional rights can be infringed upon, over the objections of several dissenting judges.

The majority opinion in Hammer v. Ashcroft, written by Chief Judge Frank Easterbrook, based its decision heavily upon the concept that the news media has "no constitutional right of access to prisons or their inmates beyond that afforded to the general public," citing Pell v. Procunier. However, in Hammer it was not a reporter, but a prisoner, who asserted a right to interview.

Death row inmate David Hammer sued Bureau of Prisons officials in 2001, after he was denied face-to-face interviews with the media. Between August and December 1999, Hammer participated in three interviews at a prison in Terre Haute, Ind. In 2000, he learned the prison had changed its rules and wouldn't allow him to speak in-person to members of the press.

The new rule was implemented after Timothy McVeigh spoke with 60 Minutes in March 2000 about the Oklahoma City bombing. Then-Attorney General John Ashcroft and former BOP director Kathleen Hawk-Sawyer announced a policy banning federal death row inmates from giving in-person interviews.

Hammer lost by summary judgment in a district court, meaning his case did not get a full trial. But in January 2008 a three-judge panel of the Seventh Circuit revived the case, saying more information was needed to determine whether the policy was motivated by a valid security concern. The entire Seventh Circuit then decided to review the panel's ruling.

The majority in Thursday's decision said only a "rational basis" was required to justify the regulation, and again cited Pell in asserting that "a no-interview policy is 'reasonably related to legitimate security interests.'"

Hammer contended that the rule was based on content discrimination, which would be forbidden by the First Amendment. Hammer cited Sen. Byron Dorgan's reaction to the McVeigh interview, in which the lawmaker wrote a letter to Hawk-Sawyer saying a convicted killer should be prevented from using television interviews to "advance his agenda of violence." Hammer also pointed to Ashcroft's comments days before the policy was put in place, when he said, "As an American who cares about our culture, I want to restrict a mass murderer's access to the public podium."

The majority decided that even if the motive behind the no-interview rule were suspect, that did not spoil the rule's reasonable connection to legitimate security purposes. In defending that connection, the majority discussed the potential problem of an inmate becoming a "celebrity" as a result of media contact, which makes crime more attractive and allows criminals to encourage others to commit crimes.

The majority dismissed Hammer's assertion that he wanted to talk to the press about "prison conditions, his current professed respect for life, and what he sees as misconduct by guards and wardens." The court said he still had an outlet for those views, because he could converse with reporters by phone or by mail. The majority said problems in the prison system could be revealed to the public when a prisoner filed a lawsuit over them.

A dissent written by Judge Llana Rovner said the government had not done enough to establish a legitimate interest to justify the no-interview policy. Rovner wrote: "[T]oday's opinion holds that a ban on face-to-face interviews in the prison system is justified if a judge can 'imagine' a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner's access to the media based on its distaste for the anticipated outcome of the prisoner's speech."

Rovner cited a Supreme Court case largely ignored by the majority, Turner v. Safley, to establish that a rule infringing on a prisoner's constitutional rights must be "reasonably related to legitimate penological interests." The "jailhouse-celebrity" concern might not be a legitimate security concern, but rather a "convenient explanation to justify a policy designed to control the speech content of a particular subset of prisoners," Rover wrote.

Rovner was especially troubled by the majority's apparent lack of concern over Ashcroft's comments indicating a belief that American culture is corroded when a death-row inmate's words are broadcast outside the prison. Rovner wrote: "First Amendment jurisprudence is grounded in the idea that the government may not prevent a person, including a prisoner, from speaking merely because it disapproves of the speaker or what the speaker might say."

In arguing that even potentially offensive words from a prisoner's mouth must be protected by the First Amendment, Rovner used Easterbrook's own comments from an opinion he wrote in 1985: "Racial bigotry, anti-semitism, violence on television, reporters' biases ... all is protected as speech, however insidious."

Rovner accused the majority of generously construing Ashcroft's statement to encompass a legitimate interest in preventing criminals from being rewarded for their actions with publicity. The judge wrote that a trial court should have a chance to interpret Ashcroft's words.

Rovner did not call for the no-interview policy to be immediately overturned, but for a trial court to hear more facts and then make a judgment on the "legitimacy of the security rationale."

Judge Diane Wood also wrote a dissent, saying the majority opinion was based on unsupported assumptions, such as that Hammer's had access to uncensored communications with the press by phone and mail.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case, urging the court to overturn the trial court's decision.