Is There a First Amendment Right to Attend Executions?

Is there a First Amendment right to attend executions? The Supreme Court’s case law on the subject of the First Amendment right to attend governmental proceedings is largely limited to criminal trials and proceedings relating to those trials. However, the logic of its precedents suggests that the right extends beyond these criminal proceedings. While most states that are actively performing executions (23 at this point) allow the press and public to attend in limited numbers, some states have limited access. In Associated Press v. Neal, decided earlier this month, the U.S. Court of Appeals for the Seventh Circuit upheld an Indiana law that denied the press and the public access to executions conducted by the state unless either the condemned inmate or the victim’s family invited them. The court rejected the claim that the First Amendment recognizes a right of the press and public to attend executions. The only other federal appeals court to address the issue, the Ninth Circuit, has held that the press and public do have a right to attend executions. The Supreme Court may need to resolve the issue, which raises important questions about the press’s right to report on, and the public’s right to know, how the government executes individuals in the name of its citizens.

A couple of points by way of general background before addressing specific questions about the right to attend public proceedings.

First, despite the fact that the First Amendment contains a Press Clause, the Supreme Court has never developed an independent press doctrine (or assembly or petition doctrines, either, even though the First Amendment also has an Assembly Clause and a Petition Clause). For reasons that I will not go into, the Court has not recognized any rights that the “institutional press” specially possess. Rather, when it has dealt with rights asserted by the media, it has treated such rights as coextensive with the rights of the public at large. In other words, the public and the press enjoy the same rights under the First Amendment.

Second, one of the rights the public and the press do enjoy is the right to gather and disseminate newsworthy information. However, the Court has not developed clear doctrines or boundaries relating to this “newsgathering” right. Like other rights, the Court has said the newsgathering right not absolute. Thus, it does not protect a right to obtain any information that might be of interest to the public. Nor does the right entail access to any and all public buildings or institutions. Governments are entitled to maintain the secrecy and confidentiality of some information, and to restrict access to public institutions when necessary to serve their interests in managing and operating them.

One thing the Supreme Court has recognized as part of this "newsgathering” right is the right to attend certain public proceedings. In a series of cases, the Court has upheld the right of the public and the press to attend criminal trials and related proceedings (e.g., jury selection, pretrial motions hearings). If that right is substantially burdened, the government must justify limiting public attendance by identifying a compelling reason and showing that the restriction is narrowly tailored to further it.

When it recognized the right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia (1980), the Supreme Court observed that such proceedings had been historically open to the public and attended by it and that attendance at criminal trials facilitates “freedom of communication on matters relating to the functioning of government.” There was, the Court said, an “unbroken and uncontradicted history” of public attendance at criminal trials. And attendance by the public - and the press as part of the public or as its surrogate - served to inform the public about matters pertaining to government and to check abuses by litigants and courts.

Owing to these rationales, the doctrine relating to the right to attend public proceedings has been referred to as an “experience and logic” test or sometimes as a “history and function” test. The first part of the test examines the history of public access and the second part considers whether and how press and public access would further the purpose of informing the public about how the government functions and perhaps improve the functioning of the proceeding.

Although the Supreme Court has never applied the test to proceedings other than those relating to criminal trials, lower courts have held that the test supports access to other proceedings including, for example, civil trials and immigration proceedings.

In Neal, the Associated Press and other media organizations unsuccessfully challenged an Indiana law that allows only the following people to attend executions: (1) the state prison warden; (2) those assisting in the execution; (3) the prison physician; (4) one other physician; (5) the inmate’s spiritual advisor; (6) the prison chaplain; (7) up to five people invited by the inmate to attend; and (8) up to eight of the victim’s immediate adult family members. Under the law, the only way members of the public or the press can attend an Indiana execution is if the condemned inmate invites them. The media plaintiffs claimed that this restriction violated the First Amendment right of the public to attend executions (it also claimed that the law singled out the press for unfavorable treatment, but this post will focus solely on the right to attend claim.)

Two members of the Seventh Circuit panel ruled against the media plaintiffs on their First Amendment access claim. The majority was not convinced that the Supreme Court’s precedents concerning the public’s right to attend criminal trials extended beyond judicial proceedings. Regarding the “experience and logic” test, it reasoned: “We doubt this framework applies to executions. The Supreme Court has only ever used it to assess whether the public has a right of access to traditional aspects of criminal proceedings.” The majority also noted that its own precedents have only recognized a qualified First Amendment right to access judicial proceedings and related documents. Executions, it reasoned, were different:

An execution does not resemble a court proceeding. It occurs outside the adjudicative process, after the factfinder has determined guilt and the trial court has imposed a sentence and terminated the case. Nor does more open public scrutiny of an execution provide a check on the activities of judges and litigants or foster more accurate fact finding.

In the alternative, even if the “experience and logic” test applied, the majority concluded that it did not justify recognizing a right to attend executions.

Although executions were public proceedings at the Founding, the majority observed, beginning in the 1830s states began to execute prisoners in government buildings such as jails and prisons before small numbers of witnesses rather than in settings where the general public attended. Thus, the majority concluded, history (“experience”) demonstrates a longstanding trend away from executions being open to the general public.

As for “logic,” the majority concluded that press and public attendance at executions would not clearly play a positive role in the functioning of the process. Although the judges conceded that the media plaintiffs made a “compelling point that increased scrutiny may lead to more humane and competently administered executions,” it also agreed with Indiana that “allowing uninvited strangers with no immediate connection to the underlying crime to watch a prisoner die risks offending the dignity of their final moments.” Noting that it “need not reach a firm conclusion on this second consideration” since the plaintiffs had not demonstrated the “experience” prong was satisfied, the majority said no more.

Judge Candace Jackson-Akiwumi dissented. She first concluded that the Supreme Court’s access precedents extended beyond judicial proceedings. Indeed, all federal appeals courts to have addressed the issue have come to that conclusion.

Judge Jackson-Akiwumi also would have held that the media plaintiffs’ access claim was supported by both history and logic.

Regarding history or experience, she observed that even after states moved executions inside prisons and other government buildings, they still allowed both the press and members of the public to attend. Indeed, “the vast majority of the executions conducted in modern times have been witnessed by members of the public or the press.” (Only Indiana and a couple of other states bar the media and public from attending unless the condemned invites them.) The fact that only a few individuals attended, as surrogates for the public at large, did not undermine the claim that there has been a history of public access. (This is essentially the reasoning the Ninth Circuit has applied in recognizing an execution access claim.) Thus, Judge Jackson-Akiwumi concluded, whether one assesses the history of executions at the Founding or during the nineteenth century, there has been an unbroken tradition of public access.

As far as “logic” or the functioning of the process, Judge Jackson-Akiwumi concluded:

Public access to executions promotes accuracy and government accountability. The presence of live, neutral witnesses serves as a check and balance on the government as it ends a person’s life. It helps incentivize government officials to adhere to standards of decency and reveal any issues that occur during an execution. Indeed, without public oversight, states would have little incentive to reveal flaws in the process. Thus, just as the right to access criminal proceedings safeguards a defendant’s right to a fair trial, access to executions protects a condemned person’s right not to be subjected to cruel and unusual punishment.

Relatedly, Judge Jackson-Akiwumi observed, “public access enhances public confidence in the legitimacy of the execution process. Citizens are less likely to harbor distrust and skepticism of a transparent process.”

Indiana justified its practice of limiting access as necessary for the dignity of condemned inmates. State state invoked the Eighth Amendment, which bans “cruel and unusual” punishments. Judge Jackson-Akiwumi countered that the Eighth Amendment does not mandate secrecy during executions. In fact, she wrote, several examples of botched executions “provide support for the Media Coalition's opposite contention: public access is necessary to ensure compliance with the Eighth Amendment's “evolving standards of decency.” The examples, which the judge described in detail over several pages, demonstrate the need to have “neutral observers” attending executions rather than rely on the government’s account or those who happen to be invited by the prisoner or the victim’s family. Judge Jackson-Akiwumi pointed out that it is only because media and the public attend executions in nearly all states that reporters have been able to provide eyewitness accounts of failed attempts to put individuals to death.

I always hesitate to predict or, more accurately, guess how the Supreme Court might revolve cases. I will, however, offer the following general observations:

1. The Supreme Court has not been a friend of the press in recent decades. As mentioned, the Court has not developed any specific Press Clause doctrines. Further, as two preeminent press scholars observed in a recent article, “Our data show that the Justices are now less likely to talk about the press than they were in the past, and that, when they do, it is more often in a negative light.” To be sure, the access cases involve not the rights of the institutional media alone but of the press and the public. Still, one must consider that the press, which has the motive and means to challenge laws like Indian’s, has not achieved much success in the Supreme Court. It may be fighting an uphill battle.

2. The Supreme Court’s access-to-government-proceedings precedents are hardly a model of clarity. True, they have recognized the public’s right to attend criminal trials and related proceedings. But the Court has said nothing about proceedings beyond that realm. It has also upheld limits on the press’s and the public’s right to gather information inside prisons, which the majority in Neal thought undermined the plaintiffs’ access claim. While I agree with the dissent in Neal that the rationale for allowing access to criminal trials extends to other proceedings, a conservative Court may be disinclined to rule that states or the federal government must allow for some access to executions. The Court might be concerned that if it recognizes an access right, it will have to decide access claims in the context of many other types of governmental proceedings (and perhaps also claims concerning access to information about lethal injection protocols). As other cases suggest, the Court might also be inclined to defer to governmental authorities regarding appropriate prison policy for executions.

3. Assuming it does apply the “experience and logic” test, the Court would face difficult questions regarding the nature of “history” or “experience” that will suffice to trigger a First Amendment claim. As the Court has noted, access to criminal trials was supported by “an unbroken, uncontradicted history.” That might mean only a comparable history of public access would suffice. Does the mere fact that executions were removed from the public square during the Nineteenth Century upset or break the historical tradition? Or is it enough that states still allowed some members of the press and public to attend? If the Court is going to parse historical eras, it may need to decide whether the most relevant history is that of the Founding Era (in which case public access to executions was common) or the history closer to the ratification of the Fourteenth Amendment (the vehicle for applying the First Amendment to the states). As in other areas, including the Second Amendment, historical analysis may turn out to be key to any decision. And as in other areas, it is not clear what the Court will do with the history it examines.

4. The “logic” of allowing at least some public access seems to favor press and public attendance at executions. Even if the Court were to make it this far, however, it may agree with the majority in Neal that public access may undermine the process, or at least that a state could so conclude. Transparency and accountability are important interests, the Court might reason, but those interests can be adequately served by relying on the other witnesses to the execution.