Government, Move Over
| American Journalism Review
| From AJR, July/August 2001|
Government, Move Over
It's the public's right to decide if it wants to watch a criminal be put to death.
By Jane Kirtley
Jane Kirtley (email@example.com) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
THE IMPACT THAT TELEVISING an execution would have on public opinion is irrelevant to whether or not the government should allow it to happen.
A federal judge in Indiana ruled that the execution of Oklahoma City bomber Timothy McVeigh could not be Webcast. Attorney General John Ashcroft, stating that he wanted to foreclose McVeigh's access to "the public podium," curtailed on-site interviews with the condemned man--restrictions that will apply to future federal executions as well--and exhorted the media to use self-restraint. The message was clear: Cover McVeigh's execution our way, or risk being labeled a "co-conspirator."
In most contexts, the First Amendment makes clear that government's disagreement with an editorial point of view cannot justify restraints on speech, including denial of access to otherwise public information or events. Why is this different?
Let's start with some basic legal propositions. The Supreme Court has repeatedly ruled that the press has no greater right to visit prisons than the public does.
When it comes to executions, laws and regulations generally allow a limited number of witnesses, including media representatives, to attend. But the exact parameters of the First Amendment right to be present remain fuzzy.
Prison authorities, both state and federal, tend to closely control access, particularly by journalists who might want to bring in cameras. And in numerous challenges by news media representatives, the courts have supported government prohibitions against electronic coverage.
The pretexts for restrictions on televising an execution are many, but the ones advanced by the Federal Bureau of Prisons in the McVeigh case are typical: maintaining security and "good order" in the prison system; protecting the privacy of the condemned, victims, their families and the officials who carry out the execution; preserving "the solemnity" of executions; and preventing sensationalizing of executions.
Of all of these, maintaining security and order is arguably the most compelling. No one would suggest that unlimited numbers of camera-wielding journalists--or members of the public, for that matter--should be allowed to descend on a maximum-security prison and disrupt the administration of this ultimate act of justice.
But when Attorney General Ashcroft approved a televised closed-circuit feed of the McVeigh execution, he effectively conceded that the mere presence of a camera would not pose a security threat. As with the camera in McVeigh's federal trial, the closed-circuit feed was permitted in order to solve the logistical problem of accommodating more than 200 interested witnesses in confined spaces. It also demonstrated that a camera would not, in and of itself, be disruptive. This is important, because as recently as 1991, a federal judge in California denied television access based on fears that a camera could conceivably strike the glass enclosing a gas chamber, breaking the seal and causing delay.
Once past that kind of safety concern, it becomes obvious that the rest of the justifications are constitutionally suspect. The Bureau of Prisons argued that if inmates watch the execution on television, they will become agitated. Perhaps. But surely officials have the power to curtail prisoners' television privileges for the duration of any broadcast, which makes more sense than depriving the rest of the public of important information.
The invasion of privacy arguments are flawed, as well. Technically, executions are public, which diminishes any expectation of privacy. With the exception of the condemned individual, everyone involved is present by choice.
Which brings us to preserving "the solemnity" of the execution and preventing "sensationalization"--noble-sounding phrases that are nothing more than code words for censorship.
Execution procedures are carefully orchestrated. The parallels to a theatrical performance are undeniable. Whether that process is "solemn" or "harrowing" or "entertaining" is largely a matter of one's point of view and ought to be left to the public to decide. Here, the government has preempted that process.
The restrictions seem to be based primarily on fear that the media will "exploit" the execution of a confessed terrorist and that the public will react in some unspecified inappropriate way.
Of course, no one really knows what the media or the people would do, given the opportunity. And we never will know, as long as the government, "in its wisdom and for the public good," refuses to let us see what is done in our name.
The government's lack of faith in the democratic process is more frightening to me than any terrorist's bomb.###