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UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ENTERTAINMENT NETWORK, INC., aFlorida corporation,

Plaintiff,

vs.

HARLEY LAPPIN, in his official capacity asWarden of United States Penitentiary TerreHaute; KATHLEEN HAWK SAWYER, in herofficial capacity as Director of the UnitedStates Federal Bureau of Prisons; and JOHNASHCROFT, in his official capacity as theUnited States Attorney General,

Defendants.

)))))))))))))))))

CASE NO.

MEMORANDUM IN SUPPORT OFMOTION FOR TEMPORARY RESTRAINING ORDER, AS WELL AS PRELIMINARYAND PERMANENT INJUNCTION, ENJOINING DEFENDANTS FROM ENFORCING28 CFR 26.4(f) AND FROM PROHIBITING PHOTOGRAPHIC OR OTHER VISUAL

OR AUDIO RECORDING OF THE TIMOTHY MCVEIGH EXECUTION

I. SUMMARY OF ARGUMENT

28 CFR 26.4(f) provides that “No photographic or other visual or audio recording of [any

federal] execution shall be permitted.” ENI wishes to exercise its First Amendment right, as a

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member of the public and press, to broadcast via the Internet a live audiovisual transmission of

the execution of Timothy McVeigh. The government’s restriction of the press’s audiovisual

capturing of Mr. McVeigh’s execution, including enforcement of 28 CFR 26.4 (f), is

unconstitutional.

The public has the right to monitor the government as it exercises certain of its powers so

as to protect the free discussion of governmental affairs. Mills v. Alabama, 384 U.S. 214, 218

(1966). The First Amendment “prohibit[s] government from limiting the stock of information

from which members of the public may draw.” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555 (1980) (citations omitted). In particular, under our Constitution, the government’s

powers of criminal prosecution and punishment – powers historically susceptible to usurpation

by tyrants and demagogues – may not be conducted under a cloak of secrecy. Id.; see also Globe

Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (public right to access testimony of a

juvenile victim in a sex crime trial); Press-Enterprise Co. v. Superior Court of California [Press

I], 464 U.S. at 508-509 (public right to voir dire transcripts in criminal proceedings); and Press-

Enterprise Co. v. Superior Court of California [Press II], 478 U.S. 1 (1986) (public right to access

criminal preliminary hearings).

Violent crimes often provoke public concern, even outrage and hostility, which in turn

generates a community urge to retaliate and desire to have justice done. Press I, 464 U.S. at 508-

509. “When the public is aware that the law is being enforced and the criminal justice system is

functioning, an outlet is provided for these understandable reactions and emotions. Proceedings

held in secret would deny this outlet and frustrate the broad public interest”. Id at 509.

Public executions in general are one of the most important and controversial public issues

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of the day which should be accompanied in a democratic society by the widest possible public

knowledge and information. Mr. McVeigh’s execution, specifically, is a matter of unparalleled

national and international interest. Mr. McVeigh bombed a building which housed officers of the

United States, and he caused death to children, women, and men who depended upon this

country to keep them safe, most of whom were responsible themselves for administering certain

government functions. The people have a right to oversee the implementation of justice against

Mr. McVeigh, namely, to witness his execution. See Cable News Network, Inc. v. American

Broadcasting Cos., 518 F. Supp. 1238, 1245 (N.D. Ga. 1981) (“[T]he importance of conveying

the fullest information possible increases as the importance of the particular news event or news

setting increases”).

Even if this matter were not so weighted with historical and emotional significance,

however, Mr. McVeigh’s execution would still be a matter of grave import. The United States

government is sponsoring the killing of a human being, and it is doing so on behalf of its citizens.

If the execution is carried out as scheduled, McVeigh will be the first civilian executed by the

federal government since Victor Feguer was hung in Iowa in 1963.

Proponents of execution point to the crime deterrence effect it ostensibly engenders.

Opponents of execution point to the primitive and barbaric act of killing a human being which

right no person nor government should have. In any event, the decision to execute is the result of

a democratic process, and the act of putting a person to death is funded by citizen’s tax dollars.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual

punishment, but the people cannot determine whether execution, or a method of execution, falls

within that scope unless they have the right to witness it. Public monitoring of the execution

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itself, and a transparent government process, is fundamental to debate and discourse relating to

federal executions and the merits of such a significant event. See Houchins v. KQED, Inc., 438

U.S. 1, 36-37 (1978) (“The reasons which militate in favor of providing special protection to the

flow of information to the public about prisons relate to the unique function they perform in a

democratic society. Not only are they public institutions, financed with public funds and

administered by public servants, they are an integral component of the criminal justice system.”)

(Stevens, J., dissenting).

Defendants seek to squelch the content of ENI’s reportage (i.e., the type of content only

possible through an audiovisual medium). The government may only restrict ENI’s First

Amendment right upon a showing that the restrictions further “an overriding interest” and are

“narrowly tailored to serve that interest.” Press I, 464 U.S. at 510. The prohibition on

photographic, audio and visual recording equipment at federal executions does not meet this

strict standard. The government has asserted three interests underlying its policy: “[1] not

sensationalizing the event, [2] maintaining prison security and good order, and [3] respecting the

privacy interests of the condemned individual.” Plaintiff’s Exh. 1. Of these, only the interest in

maintaining prison security is even arguably “overriding”, and the government’s prohibition on

recording executions is far broader than necessary or useful to advance that interest. As such, the

government’s policy is not narrowly tailored to serving the interest asserted, and should be

enjoined as violative of ENI’s rights under the First Amendment.

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1ENI requests that this Court take judicial notice of facts relating to the background of theMcVeigh case.

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II. STATEMENT OF FACTS

Background of McVeigh Case1

The bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on

the morning of April 19, 1995 was the deadliest act of terrorism ever committed on American

soil. The explosion blew the front off the nine-story Murrah building, burying victims under

collapsed ceilings and concrete and ultimately resulting in 168 deaths and over 500 injuries.

Many of the deceased were federal government employees; 19 were children who attended day

care in the building.

Two days after the blast, Timothy McVeigh was arrested by local authorities, turned over

to the FBI and charged with the bombing. A federal judge in Oklahoma City ordered the trial

moved to a Denver federal court, and following 22 full days of testimony and an estimated $10

million spent on McVeigh’s publicly-funded defense, a jury found McVeigh guilty of conspiracy

and murder in connection with the bombing, and sentenced him to death. McVeigh is currently

scheduled to be executed by lethal injection on May 16, 2001. If the execution is carried out as

scheduled, McVeigh will become the first civilian executed by the federal government since

Victor Feguer was hung in Iowa in 1963.

At his sentencing hearing, McVeigh quoted from former Supreme Court Justice Louis

Brandeis’s s dissenting opinion in Olmstead v. United States, 277 U.S. 438, 485 (1928): “Our

government is the potent, the omnipresent teacher. For good or for ill it teaches the whole people

by its example.”

2ENI requests that this Court take judicial notice of facts relating to the positions andauthority of Defendants.

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Defendants2

The Defendants are responsible for developing execution protocol at United States

Penitentiary Terre Haute (“USP Terre Haute”), including the creation and enforcement of the

rights of the public and press at the execution. Harley Lappin is the Warden of USP Terre Haute.

Kathleen Hawk Sawyer is the director of the Federal Bureau of Prisons, which oversees all

prisons in the United States prison system, including USP Terre Haute. John Ashcroft is the

attorney general of the United States, and head of the Department of Justice, which oversees the

Bureau.

ENI and its Request to Defendants

ENI is a corporation organized under the laws of Florida, based in Tampa, Florida, which

provides news, entertainment, and information via the Internet world wide web. (Marshlack

Decl. ¶ 3) On March 20, 2001, ENI delivered to Defendants a formal “Request Pursuant to First

Amendment for Permission to Transmit Via the Internet Live Audiovisual Depiction of Timothy

McVeigh Execution” (the “ENI Request”). (Marshlack Decl. ¶ 4) Among other things, the ENI

Request stated:

“This letter constitutes ENI’s formal application to the United States FederalBureau of Prisons (the “Bureau”) to serve as a media pool witness to theexecution of Timothy McVeigh, currently scheduled for May 16, 2001. Inaddition to attending the execution, ENI hereby requests permission to bring asmall audiovisual capturing device to the witness chamber, and to record andsimultaneously broadcast Mr. McVeigh’s execution via the Internet to the public. In the alternative, ENI requests that the Bureau provide ENI with access to a liveaudiovisual transmission of the execution, and permit ENI to broadcast the same

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pursuant to 28 CFR § 540.64(d) (i.e., material created by press pool is madeavailable to all media without right of first publication or broadcast) . . . Thepublic and press have a First Amendment right to attend the execution of Mr.McVeigh. The public has the right to access an audiovisual transmission of theexecution. ENI is a member of the media which is experienced in disseminatingevents via Internet webcast.. Accordingly, we respectfully request that the UnitedStates Department of Justice, and specifically the Bureau of Prisons, allow ENI towitness, and transmit to the public, the execution of Timothy McVeigh. Alternatively, ENI requests it be provided access to a live audiovisual broadcast ofthe execution, and permission to re-transmit the same via webcast, pursuant to 28CFR § 540.64(d).” (Marshlack Decl. ¶ 4)

ENI explained in the ENI Request that it seeks only bring an unobtrusive camera into the

execution witness chamber, and that ENI would comply with any reasonable security requests

related to the camera (Marshlack Decl. ¶ 5):

“ENI requests only that one (1) camera, the size of a small hand held personalvideo camera, and one (1) camera operator, be present at the execution. ENI willcomply with any security or other reasonable restrictions or protocol thegovernment may place on the camera and its operator. For example, upon request,ENI would deliver the camera to the Warden for inspection one (1) month beforethe execution date, and permit the government to hold the camera in its custodyuntil the execution date. Similarly, the camera operator is willing to undergo anyreasonable psychological evaluation or background investigation which theWarden deems appropriate.

“The camera will transmit a wireless signal to a broadcast facility vehicle, whichvehicle will be parked about one (1) mile outside of the prison complex. Thebroadcast facility vehicle would then transmit the audiovisual signal of theexecution to ENI’s webcast headquarters in Tampa, Florida, where the signalwould be made available to the public via the Internet. The camera operator willrequire only two (2) hours to setup the camera and establish connection to thebroadcast facility vehicle.” (Marshlack Decl. ¶ 5)

On March 28, 2001, Defendants responded to the ENI Request with a letter of denial (the

“Bureau Response”). (Marshlack Decl. ¶ 6) The Bureau Response stated:

“. . . We have carefully considered your request, but find it inconsistent withcurrent Department of Justice regulations which prohibit visual or audio recordingof the execution . . . We believe the Department of Justice regulations strike an

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appropriate balance between the public’s interest in executions, and thegovernmental interests in not sensationalizing the event, maintaining prisonsecurity and good order, and respecting the privacy interests of the condemnedindividual.” (Marshlack Decl. ¶ 6)

III. ARGUMENT

28 CFR 26.4(f) provides that “No photographic or other visual or audio recording of [any

federal] execution shall be permitted.” ENI wishes to exercise its First Amendment right, as a

member of the public and press, to broadcast via the Internet a live audiovisual transmission of

the execution of Timothy McVeigh. ENI moves this Court to enjoin Defendants from enforcing

28 CFR 26.4(f) or from otherwise prohibiting audiovisual capturing of Mr. McVeigh’s

execution.

The Seventh Circuit follows a four-part test to determine whether an injunction should

issue. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12-13 (7th Cir. 1992). “As a

threshold matter, a party seeking a preliminary injunction must demonstrate (1) some likelihood

of succeeding on the merits, and (2) that it has ‘no adequate remedy at law’ and will suffer

‘irreparable harm’ if preliminary relief is denied.” Id. (citations omitted). If plaintiff clears this

threshold, “the court must then consider: (3) the irreparable harm the non-moving party will

suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the

moving party if relief is denied; and (4) the public interest, meaning the consequences of granting

or denying the injunction to non-parties.” Id. The court then weighs all four factors, using a

“sliding scale” approach: “the more likely it is the plaintiff will succeed on the merits, the less

the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will

succeed, the more the balance need weigh towards its side.” Id. (citations omitted). The court

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also takes into consideration the consequences to the public interest of granting or denying

preliminary relief. Id.

A. ENI IS LIKELY TO SUCCEED ON THE MERITS

1. ENI has a First Amendment right to attend the execution.

Consistent with our democratic form of government, the public and media have an equal

First Amendment right to access proceedings in the criminal justice system when: (1) the

proceeding in question “historically has been open to the press and the general public,” and (2)

access by the press and the public “plays a particularly significant role in the functioning of the

judicial process and the government as a whole.” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 575-576 (1980). In formulating and applying these criteria, courts have recognized a

presumptive right of access to virtually every phase of the criminal justice process. See, e.g.,

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (public right to access testimony

of a juvenile victim in a sex crime trial); Press I, 464 U.S. 501 (public right to voir dire

transcripts in criminal proceedings); and Press II, 478 U.S. 1 (1986) (public right to access

criminal preliminary hearings).

Where presumptive rights of access exist, closure of all or any part of the proceeding

must be narrowly tailored to further a compelling government interest. Press I, supra, 464 U.S.

at 510.

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a. Executions have traditionally been open to the press and public; and

the government requires them to be open now.

Executions in America have traditionally been public events. The press and citizens are

always present at executions. See, e.g., KQED v. Vasquez, 16 Med. L. Rptr 2323, 2324-25 (N.D.

Cal 1991) (“Whether we’ve had public or private executions in California, the press has always

been there. And the First Amendment makes it pretty clear that it’s pretty important to have a

process of information gathering in our country”) (Schnake, J.). During the period after the

ratification of the Constitution, large crowds descended upon hangings whether the setting was

New York, Boston, or some smaller town. See N. Teeters & J. Hedblom, Hang by the Neck 19-

46, 59-63 (1967). In the 1830s, however, a powerful movement to abolish capital punishment

prompted several states to make executions private. Davis, The Movement to Abolish Capital

Punishment in America, 1787-1861, 63 Am. Hist. Rev. 23, 33-34 (1957). Part of the motivation

for change was apparently fear among supporters of capital punishment that well-publicized

executions would fan public sentiment to abolish the death penalty altogether. See, e.g., P.

Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State

1776-1861, at 115-19 (1982). The last truly public execution in the United States took place in

Owensboro, Kentucky, on August 14, 1936, when Rainey Bethea was hanged before a crowd of

20,000. See Goodman, Ellen, Public Killings, The Washington Post, March 20, 1984 A23.

As states gradually eliminated the public execution, many enacted statutes or regulations

to insure a continued media and/or public presence at executions. Of the thirty-eight (38) states

3 Alabama (Ala. Stat. Ann. 13A-5-40), Arizona, Arkansas (Ark. Code Ann. 5-10-101),California (Cal. Penal Code Sec. 189, 109.2(17)), Colorado, Connecticut, Delaware, Florida,Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri,Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, New Mexico, N.Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee,Texas, Utah, Virginia, Washington, and Wyoming.

4 Ind. Code Ann. § 35-1-46-14 (Burns 1979); Tenn. Code Ann. § 40-3119 (1975); Wyo. Stat. § 7-13-911 (1977).

5 Ariz. Rev. Stat. Ann. § 13-705 (1978); Ark. Stat. Ann. § 43-2615 (1977); Colo. Rev. Stat. § 16-11-404 (1978); Md. Ann. Code art. 27, § 73 (1982); Mass. Gen. Laws Ann. ch. 279, § 50(West 1981); Mo. Ann. Stat. § 546.740 (Vernon 1953); Mont. Code Ann. § 46-19-103 (1981);Neb. Rev. Stat. § 29-2534 (1979); Nev. Rev. Stat. § 176.355 (1980); N.H. Rev. Stat. Ann. § 630:6 (1974); N.M. Stat. Ann. § 31-14-15 (1978); Va. Code § 53.1-234 (1982).

6 Alabama, see Ala. Code § 15-18-83 (1975); California, see Cal. Penal Code § 3605 (West1982); Connecticut, see Conn. Gen. Stat. Ann. § 54-100 (West Supp. 1981); Florida, see Fla.Stat. Ann. § 922.11 (West 1982); Fla. Admin. Code ch. 33-15; Georgia, see Ga. Code Ann. § 17-10-41 (1982); Illinois, see Ill. Ann. Stat. ch. 38, § 119-5 (Smith-Hurd 1973); Kentucky, seeKy. Rev. Stat. § 431.250 (1975); Louisiana, see La. Code Crim. Proc. Ann. art. 570 (West1981); Louisiana Department of Corrections, Reg. No. 10-25 (1981); Mississippi, see Miss. CodeAnn. § 99-19-55 (1972); North Carolina, see N.C. Gen. Stat. § 15-190 (1978); North CarolinaDepartment of Corrections, Execution Procedures (1982); Ohio, see Ohio Rev. Code Ann. § 2949.25 (Page 1982); Ohio Admin. Code § 5120-9-54 (1982); Oklahoma, see Okla. Stat. Ann.tit. 22, § 1015 (West 1958); Pennsylvania, see 61 Pa. Cons. Stat. Ann. § 2125 (Purdon Supp.1981); South Carolina, see S.C. Code Ann. § 24-3-550 (Law. Coop. 1976); South CarolinaDepartment of Corrections, Execution Procedures (1980); South Dakota, see S.D. Codified LawsAnn. § 23A-27A-35 (1979); Texas, see Tex. Code Crim. Proc. Ann. art. 43.20 (Vernon 1979);Texas Department of Corrections, Policy No. 1-82 (1982); and Utah, see Utah Code Ann. § 77-36-18 (Supp. 1979).

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that currently have a death penalty,3 thirty-two (32) require witnesses to be present at the

execution. Of these, three (3) states allow only persons acting in an official capacity or chosen

by the condemned to be present;4 twelve (12) require a given number of witnesses at an

execution, but don’t specify who the witness group should include;5 and seventeen (17) expressly

require one or more media witnesses.6 Even in states that have not codified media access to

executions, however, there does not appear to be precedent for excluding either the public or the

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press from witnessing executions. See California First Amendment Coalition v. Calderon, 956 F.

Supp. 883, 887 (N.D. Cal. 1997) (Calderon I), rev’d on other grounds, 138 F.3d 1298 (9th Cir.

1998) (Calderon II); opinion withdrawn and replaced by 150 F.3d 976 (9th Cir. 1998) (Calderon

III).

In the federal system, which governs this case, executions are made public pursuant to 28

CFR 26.4(c), which provides for numerous witnesses to executions including eight citizens and

ten representatives of the press. Obviously, for safety and security reasons, the Bureau cannot

permit every member of the public to attend executions. However, 28 CFR 26.4(c) requires the

Bureau to allow public access through citizen and media representatives.

b. Observation of executions by the press and public is functionally

important to significant societal and constitutional goals.

The Supreme Court has recognized that important societal values are served by an open

criminal justice system. In Richmond Newspapers, supra, 448 U.S. at 572, Chief Justice Burger

observed, “the appearance of justice can best be provided by allowing people to observe it.

People in an open society do not demand infallibility from their institutions, but it is difficult for

them to accept what they are prohibited from seeing.”

Most Supreme Court authority regarding public access to the criminal justice system

concerns the right of the public and press to access certain aspects of the trial. see Globe

Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (public right to access testimony of a

juvenile victim in a sex crime trial); Press I, 464 U.S. at 508-509 (public right to voir dire

transcripts in criminal proceedings); and Press II, 478 U.S. 1 (1986) (public right to access

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criminal preliminary hearings).. The rationale for those decisions, however, is equally applicable

to the implementation of punishment. Public and media access to criminal trial proceedings is

“thought necessary either to instill confidence that justice is administered in a fair and even-

handed fashion or to inform the community when justice is not even-handed and reform

measures are therefore necessary.” Calderon I, supra, 956 F. Supp. at. 883. These interests are

similarly furthered by public and media access to executions. A self-governing citizenry's ability

to make informed decisions concerning the sanction of capital punishment, and the

constitutionality of its implementation, is entirely dependent on the media's ability to acquire and

provide the requisite information. As the court reasoned in Garrett v. Estelle, 424 F. supp.468,

471 (N.D. Tex.), rev’d on other grounds, 556 F.2d 1274 (5th Cir. 1977); cert. denied, 438 U.S.

914 (1978):

“The carrying out of the death penalty is an act of state. It is the ultimate act ofstate. A state execution is an act of the collective wills of all the people. . .Thepeople, through . . . media representatives, must have access to the dungeons andthe ‘death rows’ so that the people remain aware of the workings of theirgovernment. If there is any subject about which the people have a ‘right to know,’surely it is this.”

Accordingly, access to executions plays a particularly significant role in the functioning of the

judicial process and the government as a whole:

“Like trials, executions implicate fundamental aspects of government and thelegal process. Short of waging war, capital punishment indisputably represents theultimate exercise of state power. When the state chooses to wield its authority inthis way, the people must have confidence that it does so within the boundariesprescribed by law. As with the trial, every citizen need not attend an execution inorder to be assured that no untoward conduct has occurred; the presence of agroup of ‘reputable citizens’ has traditionally served that purpose. In our highlypopulated and widely dispersed republic, the media almost invariably now serveas the public's surrogate. Hence, even though the historical basis for the media'switnessing of executions is somewhat less clear than that of the public generally,

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it is no stretch to suggest that the public's right of access includes a right of mediaaccess.” Calderon I, supra, 956 F. Supp. at. 883.

Additionally, media access to executions is the means by which the condemned inmate’s

Eighth Amendment guarantee of freedom from cruel and unusual punishment is realized. A

punishment is constitutional only if it is compatible with the “evolving standards of decency

which mark the progress of a maturing society.” See Trop v. Dulles, 356 U.S. 86, 101 (1958).

Methods of execution that cause excessive suffering are considered cruel and unusual. See In re

Kemmler, 136 U.S. 436, 447 (1890). Eyewitness testimony has been used by courts evaluating

the constitutionality of various methods of punishment, see, e.g., Jones v. Butterworth, 695 So.

2d 679 (Fla. 1997); Sims v. Florida, 2000 WL 193226 at *7-8 (Fla. 2000); Fierro v. Gomez, 865

F. Supp. 1387 (ND Cal. 1994), and has prompted public debate about how executions are

performed. See, e.g., Calderon III, supra, 150 F.3d at 978 (“Eyewitness media reports of the first

lethal gas executions sparked public debate over this form of execution and the death penalty

itself”).

For the Eighth Amendment to have meaning, the public must have a standard regarding

how much suffering by a condemned inmate is “excessive.” For that standard to exist, the

public must have specific information about execution methods and their effects upon the

condemned. That information is furnished to the public by the press. In light of the historical

access that the public and press have had to executions, and of the significant role that such

access plays in the functioning of the judicial process and the government as a whole, under the

holding of Richmond Newspapers, supra, 448 U.S. at 572, plaintiff has a First Amendment right

to attend the execution.

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In the letter rejecting ENI’s request, Defendants cite Holden v. Minnesota, 137 U.S. 483

(1890) as a case that “rejected the asserted right of the media to be present and video-tape or

broadcast an execution”. Holden, however, did not address the First Amendment, nor the

media’s right to accurate convey information about an execution. To the contrary, Holden

concerned a petition for habeas corpus where the petitioner claimed that Minnesota had

subjected him to an ex post facto law by applying a statute that had been amended to require

solitary confinement prior to execution. Holden v Minnesota, 137 U.S. 483, 487 (1890). He

argued that the law existing at the time of the offense would not have subjected him to solitary

confinement prior to his execution and, therefore, the entire statute was an ex post facto law as

applied to him. Id. In ruling on this issue, the Court noted in dicta that one section of the act

barred the attendance of newspaper reporters at executions and made publishing accounts of

them a misdemeanor; and commented that “[t]hese are regulations which the legislature, in its

wisdom, and for the public good, could legally prescribe.” Id at 486. The Court found that the

imposition of these restrictions did not make the law ex post facto. Id at 491. Holden concerned

the rights of the condemned; the question of whether the press could be barred from the

execution consistent with the First Amendment was not before the Court. Moreover, the Court’s

1890 dicta regarding media access, upon which Defendants rely, is inconsistent with the Court’s

several subsequent holdings in modern times arising out of Richmond Newspapers and its

progeny.

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2. The government must justify its prohibition of recording devices.

The public and the media have a constitutional right to access the execution. The

government does not, of course, have the power to impose whatever conditions it sees fit on its

citizens’ exercise of their constitutional rights. Consequently, it must assert sufficient interests to

justify its policies.

“[T]erms of access that are reasonably imposed on individual members of the public may,

if they impede effective reporting without sufficient justification, be unreasonable as applied to

journalists who are there to convey to the general public what the visitors see.” Houchins v.

KQED, Inc., 438 U.S. 1, 17 (1978) (Stewart, J. concurring). Thus, “[I]f a television reporter is to

convey the jails' sights and sounds to those who cannot personally visit the place, he must use

cameras and sound equipment.” Id. Prison officials do not have unfettered discretion to impose

restrictions; they may restrict different forms of access (i.e., photographs versus notepads) only

“[s]o long as reasonable and effective means of communication remain open and no

discrimination in terms of content is involved.” Pell v. Procunier, 417 U.S. 817, 829-30.

Restrictions on forms of access must “operate in a neutral fashion, without regard to the content

of the expression.” Id.

3. The Government May Not Restrict Audiovisual Transmission of McVegih’s

Execution Unless Such Restriction Is Narrowly Tailored to a Substantial

Government Interest

Restrictions that regulate only the time, place, or manner in which one exercises First

Amendment rights may be imposed validly so long as the restrictions “serve a significant

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governmental interest and leave ample alternative channels for communication.” Consolidated

Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 535 (1980); see also City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (stating that “time, place, and manner regulations

are acceptable so long as they are designed to serve a substantial governmental interest and do

not unreasonably limit alternative avenues of communication”). When regulations are based on

the content of speech, however, “governmental action must be scrutinized more carefully to

ensure that communication has not been prohibited 'merely because public officials disapprove

the speaker's views.” Consolidated Edison Co., 447 U.S. at 536 (quoting Niemotko v. Maryland,

340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result)).

Defendants’ policy of prohibiting recording devices at executions is a content-based

restriction. A regulation is deemed to be content-based not only if it seeks to prevent the

expression of a particular viewpoint, but also if it seeks to exclude discussion of particular

subject matter. The “First Amendment's hostility to content-based regulation extends . . . to

prohibition of public discussion of an entire topic.” Boos v. Barry, 485 U.S. 312, 319 (1988)

(plurality) (quoting Consolidated Edison, supra, 447 U.S. at 537).

The original justification for removing executions from public viewing a century and a

half ago stemmed from a desire to squelch anti-capital punishment sentiment. Concerns that

public executions would result in the abolition of the death penalty still exist today, and may in

fact be the driving force behind the regulations on filming. Indeed, some opponents of capital

punishment support public executions for just that reason; in 1991, in the wake of the ruling in

KQED v. Vasquez, the California legislature considered a bill that would have allowed

executions to be televised. The bill was defeated in a 28-40 vote. See Greg Lucas, Televised

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Execution Bill Dies Assembly Votes It Down for a Second Time, S.F. CHRON., Sept. 4, 1991, at

A14. According to one: “There is a hidden agenda to this bill and that is to eliminate capital

punishment as a law in California.” Id. (quoting Assemblyman Stan Statham); see also Ken

Hoover, Bill Defeated to Televise Executions, UPI, Sept. 3, 1991, available in LEXIS, Nexis

Library, UPI File (“Much of the opposition came from Republican supporters of the death

penalty who argued that [the bill's principal supporter's] real motive was to create public

revulsion against capital punishment.”); Victoria Slind-Flor, Film at 11? Lawyers Debate TV

Executions, NAT'L L.J., June 10, 1991, at 8 (reporting California Deputy Attorney General Karl

S. Mayer's accusation that KQED was suing for the opportunity to film the execution in

furtherance of its hidden anti-death penalty agenda).

The impact, emotion, veracity, effect, tension, and understanding of an event so grave as

an execution can be depicted through audiovisual transmission, but is lost through mere verbal

and written accounts. Audiovisual broadcast has led all other media as the primary source of

news since the early 1960s. Roper Reports, America's Watching: 30th anniversary, 1959-1989,

at 14 (1989). Sixty-five percent of all adults acquire most of their news from television. Id.

Indeed, only two percent of Americans derive their news from sources exclusive of audiovisual

means. Id. By limiting reportage of executions to after-the-fact narratives, the government

deprives the public of any meaningful opportunity to exercise their First Amendment right to

obtain information.

Furthermore, as Justice Powell recognized, the public is “the loser” when news coverage

is limited to “watered-down verbal reporting, perhaps with an occasional still picture.... This is

hardly the kind of news reportage that the First Amendment is meant to foster.” Zacchini v.

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Scripps-Howard Broadcasting Co., 433 U.S. 562, 581 (1977) (Powell, J., dissenting). In fact, in

Cable News Network, Inc. v. American Broadcasting Cos., 518 F. Supp. 1238 (N.D. Ga. 1981).

in which the court faced the question of whether the White House could permissibly ban

television coverage of certain presidential events while allowing print journalists to cover the

same event, the court confessed that it was “at a loss to find any direct governmental interest

served by” the prohibition (emphasis added). Id. at 1245. In holding that the total exclusion of

television coverage violated the First Amendment, the court reasoned:

“[I]t cannot be denied that television news coverage plays an increasinglyprominent part in informing the public at large of the workings of government. Many citizens likely rely on television as their sole source of news. Further,visual impressions can and sometimes do add a material dimension to one'simpression of particular news events. Television film coverage of the newsprovides a comprehensive visual element and an immediacy, or simultaneousaspect, not found in print media.” Id.

Most significantly, the Court also held that the prohibition on television coverage was not

remedied by the inclusion of print reporters:

“[T]he unique continuous visual element of television news coverage will bedenied to the public and the press. Such film imagery which is so vital totelevision reporting cannot meaningfully be replaced by still photographsprovided by the non-television participants in pool coverage. By totally excludingtelevision participants, a complete visual record ... is lost forever.” Id.

By forbidding the sense of immediacy fostered by audiovisual reportage, the government

insures that its most weighty actions will remain mere abstractions to the vast majority of the

citizenry. Indeed, the Bureau’s prohibition is unconstitutional “[f]or the First Amendment does

not speak equivocally. . . It must be taken as a command of the broadest scope that explicit

language, read in the context of a liberty-loving society, will allow.” Bridges v. California, 314

U.S. 252, 263 (1941) (emphasis added). The Bureau cannot constitutionally restrict the type of

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expression made possible only via audiovisual broadcast. Supreme Court precedents make

unmistakably clear that “any prior restraint of expression comes to [the] Court bearing a heavy

presumption against its constitutional validity,” and that the proponent of such drastic measures

"carries a heavy burden of showing justification for [its] imposition.” Nebraska Press Assn. v.

Stuart, 427 U.S. 539, 558 (1976), quoting Organization for a Better Austin v. Keefe, 402 U.S.

415, 419 (1971) (citations omitted); accord, New York Times Co. v. United States, 403 U.S.

713, 714 (1971) (per curiam).

4. The interests asserted by the Bureau in prohibiting recording devices at

executions are not narrowly tailored to any compelling government interest,

and do not justify the government’s complete prohibition on photographic,

audio and visual recording devices.

In their letter denying plaintiff’s request, Defendants assert that the government interests

furthered by the prohibition on photographic, audio and visual recording of executions are “[1]

not sensationalizing the event, [2] maintaining prison security and good order, and [3] respecting

the privacy interests of the condemned individual.” Because the plaintiff has a First Amendment

right to attend the execution, the prohibition is permissible only if it is narrowly tailored to a

compelling government interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596. As

described below, the government’s policy does not meet this strict standard of judicial scrutiny.

a. Avoiding sensationalism is not a legitimate government interest.

Whether an event is portrayed in a dignified or a sensationalistic manner is determined by

the journalistic style of the particular reporter covering the event and by the context in which his

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or her report appears, not by an unbiased, unembellished depiction of the event as it occurs. A

video camera simply records what is before it, without judgment. The First Amendment

prohibits the government from, among other things, dictating the “tone” used by the media in

reporting on government actions. Norton v. Discipline Committee of East Tennessee State

University, 399 U.S. 906, 908 (1970). Neither Defendants or any other government official may

“punish speech because it is rude or disrespectful, . . . or because for any other reason they do not

like its content.” Id. at 909. The government does not, and cannot under the Constitution, have

an interest in “not sensationalizing the event.”

b. Prohibiting recording devices at the execution is not narrowly tailored

to advancing the government’s interest in maintaining prison security

and good order.

The government’s interest in maintaining prison security and good order is legitimate.

However, in the context of plaintiff’s request, the government’s prohibition on photographic,

audio and visual recording devices is fatally overbroad. Security and order are not threatened to

any significant degree by the presence in the witness chamber of “one (1) camera, the size of a

small hand held personal video camera”. In fact, advances in technology enable the use of

recording devices that work with available light and are extremely unobtrusive. To the extent, if

any, that security and good order are threatened by the content itself – if, for instance, the

government fears that other inmates viewing the execution might be prone to riot, or to retaliate

against prison staff involved in the execution – such concerns can be easily addressed in this

instance by preventing inmates from accessing the Internet during the execution, or by other

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simple technical means.

The ready availability of procedures less burdensome than complete prohibition

establishes that closure is not narrowly tailored to Defendants’ asserted interest. Defendants’

practices, therefore, unconstitutionally burden Plaintiff’s First Amendment right to webcast the

McVeigh execution.

c. Mr. McVeigh requested that his execution be broadcast, and therefore

the government’s asserted interest in protecting the privacy interests

of the condemned individual is not before this Court.

Mr. McVeigh requested that his execution be broadcast. Consequently, the government’s

asserted interest in protecting the privacy interests of the condemned individual is not applicable

to the current circumstances. Whether the public’s interest in viewing executions outweighs the

privacy rights of the inmate need not be decided by this Court.

B. ENI WILL SUFFER IRREPARABLE INJURY UNLESS DEFENDANTS ARE

ENJOINED

“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionab1y constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality); National People’s Action v. Village of Wilmette, 914 F. 2d 10018, 1013 (7th Cir.

1990); cert. denied, 499 U.S. 921 (1991).

If the scheduled execution of Mr. McVeigh takes place on May 16, 2001, and

photographic, audio, and visual recording equipment is not permitted, the plaintiff will suffer

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irreparable injury from the violation of its First Amendment rights. Without a preliminary

injunction, the right of the public to receive complete and accurate information will be lost in this

instance.

C. DEFENDANTS WILL NOT SUFFER ANY HARM IN IF ENJOINED; PUBLIC

INTEREST AND THE BALANCE OF THE HARDSHIPS FAVOR A PRELIMINARY

INJUNCTION

The balance of hardships weighs in favor of granting a preliminary injunction. The

hardship to ENI and the public interest are coextensive because the harm is the prohibition of the

media from providing complete coverage of the event. Without a preliminary injunction,

Defendants will perform the first federal execution in nearly forty years, after one of the most

publicized trials in the nation’s history, without the public having the opportunity to obtain the

information they require to make an informed decision about capital punishment. This injury to

the public interest deserves particular regard in considering equitable relief. American

Motorcyclist Ass'n v. Watt, 714 F.2d 962, 967 (9th Cir. 1983).

The balance of hardships is tipped sharply in ENI’s favor because, while Defendants’

practices interfere with public rights, a preliminary injunction against Defendants would not

cause any harm to Defendants. Plaintiff has not asked, and the preliminary injunction would not

require, that Defendants do anything other than permit Plaintiff to attend the execution with a

small, natural-light video camera with a wireless connection. A preliminary injunction would do

no more than restore the status quo that existed for more than 140 years.

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IV. CONCLUSION

The public and press have an equal right to attend federal executions. Likewise, the

public and press have an equal right to report about and openly discuss the execution. The

public’s right to attend the execution, and the press’s right to accurately report it, cannot be

meaningfully accomplished without the audiovisual transmission of the execution itself. The

government cannot restrict audiovisual transmission unless such restriction is narrowly tailored

to an important government interest. Of the interests Defendants raise, restriction of cameras at

the McVeigh execution does not further Defendants’ interests, and in any event is not narrowly

tailored to them. Therefore, pursuant to the First Amendment of the United States Constitution,

Defendants must permit the media to transmit and record via audiovisual medium the execution.

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For all the foregoing reasons, this Court should grant ENI’s request and enjoin

Defendants from enforcing 28 CFR 26.4(f), or from otherwise prohibiting the press pool present

at the McVeigh execution from capturing, recording, or transmitting via audiovisual media

depictions of the execution.

DATED this 4th day of April, 2001.

Respectfully Submitted,

NEWMAN & NEWMAN,ATTORNEYS AT LAW, LLP

By: Derek A. Newman,CA Bar No. 190467 – WA Bar No. 26967[awaiting admission pro hac vice]

1001 Fourth Avenue Plaza, Suite 3200Seattle, Washington 98154(206) 624-6334 phone(206) 624-6348 fax

TRUEBLOOD LAW FIRM

By: Stephen L. Trueblood, # 594-84

626 South Sixth StreetP.O. Box 10068Terre Haute, IN 47801(812) 232-5071 phone(812) 232-8657 fax

Attorneys forENTERTAINMENT NETWORK, INC., Plaintiff