Media do not have right to view executions from the start

NINTH CIRCUIT–In late April, a federal appeals court unanimously held that California regulations limiting public and news media access to executions did not violate the constitutional rights of the media.

The decision reversed the holding of a lower court in favor of the California First Amendment Coalition and the Northern California chapter of the Society of Professional Journalists.

Although it recognized that newsgathering is protected by the First Amendment, the panel said that the regulations do not violate the constitution because journalists have no greater right to view executions than does the general public. In addition, the appeals court observed that the regulations do not deny access to executions altogether, but merely restrict access in accordance with security concerns.

The challenged regulations state that witnesses may view executions only from the time the IV for the lethal injection has been inserted into the arm of the condemned prisoner, until the inmate is pronounced dead. The media groups wanted to see it from just prior to the time the prisoner was strapped to the gurney.

Prison officials argued that the limitation was necessary to protect execution team members and their families. According to officials, because lethal injection executions can take as long as 20 minutes to prepare, there was a greater likelihood that they would be identified, which could expose them and their families to intimidation and could affect the performance of their duties and compromise safety.

The appeals court cited U.S. Supreme Court precedent holding that the press has “no constitutional right of access to prisons or their inmates beyond that afforded the general public.” The panel noted that the Supreme Court had previously upheld prison regulations that prevented the media from conducting interviews with inmates.

The media plaintiffs tried unsuccessfully to distinguish those cases which concerned the “everyday workings” of a prison. This case focused on executions, an important and controversial exercise of state power, raising issues more like those in which the high court has recognized that the First Amendment protects the rights of the press and the public to observe governmental proceedings, they argued.

The appeals court noted that the regulations are “directly related to prison security, staff safety, and the orderly operation of the institutional procedure.” The judiciary has long shown great deference to prison officials on such matters.

The media challenged the regulations and sought an injunction in April 1996, alleging that the restrictions violated their First and Fourteenth Amendment rights to view crucial aspects of the execution. The organizations filed the lawsuit after witnesses to the February 1996 execution of William Bonin were allowed to enter the observation room only after Bonin had been strapped to a gurney with the intravenous tubes inserted. Witnesses were later told that prison officials had difficulty inserting the IV needles.

The district court granted the injunction, and prison officials appealed.

A provision of the regulations not challenged by the news media provides that 17 of the 50 spaces in the witness area are for members of a press pool. (California First Amendment Coalition v. Calderon; Media Counsel: David Fried, San Francisco)