Rice v. Kempker, 03-2979.

• Decision Date: 09 July 2004
• Docket Number: No. 03-2979.,03-2979.
• Citation: 374 F.3d 675
• Parties: Reverend Larry RICE; Reverend Raymond Redlich; New Life Evangelistic Center, Inc., Appellants, v. Gary KEMPKER; State of Missouri; George Lombardi; Don Roper, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

374 F.3d 675

Reverend Larry RICE; Reverend Raymond Redlich; New Life Evangelistic Center, Inc., Appellants, v. Gary KEMPKER; State of Missouri; George Lombardi; Don Roper, Appellees.

No. 03-2979.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2004.

Filed: July 9, 2004.

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Earl Robert Schultz, St. Louis, Missouri (Sarah Rubenstein, St. Louis, Missouri, on the brief), for appellant.

Michael Eugene Cook Pritchett, AAG, argued, Jefferson City, Missouri, for appellee.

Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Plaintiffs Reverend Larry Rice, Reverend Raymond Redlich, and New Life Evangelistic Center, Inc. (hereinafter collectively referred to as New Life) argue that the policy of the Missouri Department of Corrections banning cameras in the execution chamber violates plaintiffs' First Amendment rights of public access. The District Court¹ disagreed and granted summary judgment for the defendants, all of whom are officials of the Missouri Department of Corrections (the Department). We affirm.

New Life requested permission from the Department to videotape the execution of convicted murderer Daniel Basile. The Department, acting through Director Gary Kempker and officials George Lombardi and Don Roper, applied the Department's Media Policy and denied New Life's request. The Media Policy states simply, "No cameras or tape recording device of any type shall be allowed in the witness area of the execution room or the surrounding area. However, each media witness representative shall be allowed to take paper, pencil and sketch pad to the witness area." Mo. Dep't of Corrs., Media Policy § 14B. New Life, alleging that the Media Policy violates the First Amendment, brought suit in the District Court seeking a declaratory judgment and an injunction to prevent the enforcement of the no-camera policy. At the summary-judgment stage of the ensuing proceedings, the defendants argued that the Media Policy did not violate any of the freedoms protected by the First Amendment. In the alternative, the defendants argued that if the Media Policy were found to infringe upon a constitutionally protected liberty, any such infringement was outweighed by legitimate penological interests and should be evaluated under the standards set forth in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The District Court found that a ban on videotaping executions burdened New Life's constitutional right of access, but agreed with the defendants that the infringement was reasonable in light of legitimate penological concerns. Because we conclude that the Media Policy does not infringe on liberties protected by the First Amendment, we affirm the judgment of the District Court.

We review grants of summary judgments de novo, applying the same Rule 56 standards that govern all federal courts in their decisions on motions for summary judgment. See Fed.R.Civ.P. 56; Southern Union Co. v. Mo. Pub. Serv., 289 F.3d 503, 505 (8th Cir.2002).

Initially, we must decide whether the execution of Daniel Basile has rendered the appeal moot. We agree with the District Court that the case is not moot and falls squarely within the "capable of repetition, yet evading review" exception to the mootness doctrine found in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (holding that a federal court may retain jurisdiction in an otherwise moot case if the challenged action is too short in duration for timely review and there is a reasonable expectation that the complaining party will be subject to the same action again). See Webster Groves School District v. Pulitzer Publishing Co., 898 F.2d 1371, 1373 (8th Cir.1990). Both of the factors supporting the mootness exception exist in the present case: once all avenues for challenging a sentence of death have been exhausted, and a final execution order entered, the execution usually, as here, occurs within a rather short period of time, and it is very likely that New Life will seek to videotape another Missouri execution. Accordingly, the appeal is not moot.

We turn to the merits of the case. New Life argues that the First Amendment mandates that the public be allowed to videotape an execution. Seeking to persuade this Court to go where no court previously has gone, New Life relies on a two-step argument. The first step New Life asks us to take is to rule that the First Amendment, as interpreted by Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (holding that the First Amendment requires criminal trials to be open to the public), requires executions to be open to the public. New Life then argues that prohibitions on videotaping are impermissible burdens on its constitutional right of access to executions. We find no need to engage in this two-part inquiry and instead address the issue directly and hold that the First Amendment does not protect the use of video cameras or any other cameras or, for that matter, audio recorders in the execution chamber.

Because we hold that neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public, we find it unnecessary to decide whether executions must be open to the public.² While Richmond mandates that criminal trials be open to the public, no court has ruled that videotaping or cameras are required to satisfy this right of access. Instead, courts have universally found that restrictions on videotaping and cameras do not implicate the First Amendment guarantee of public access. See Whiteland Woods v. Township of West Whiteland, 193 F.3d 177, 184 (3rd Cir.1999) (holding that public has no right to videotape Planning Commission meetings that were required to be public); United States v. Kerley, 753 F.2d 617, 621 (7th Cir.1985) (holding that the public has no right to videotape trial even when the defendant wishes it to be videotaped); Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 23 (2d Cir.1984) ("There is a long leap, however, between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised."), cert. denied, 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 (1985); United States v. Hastings, 695 F.2d 1278, 1284 (11th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983) (holding that the press had no right to videotape criminal trials); cf. Nixon v. Warner Communications Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (holding that no First Amendment right existed to publish or copy exhibits displayed in court); United States v. McDougal, 103 F.3d 651, 659 (8th Cir.1996), cert. denied, 522 U.S. 809, 118 S.Ct. 49, 139 L.Ed.2d 15 (1997) (holding that First Amendment right of access does not extend to videotaped deposition testimony of then-President Clinton). As the Second Circuit has observed, "the First Amendment right of access is limited to physical presence at trials." United States v. Yonkers Bd. of Educ., 747 F.2d 111, 113 (2d Cir.1984). Based on the overwhelming weight of existing authority, as well as on our general understanding of First Amendment principles, we hold that the Media Policy banning the use of video cameras and other cameras in the execution chamber does not burden any of New Life's First Amendment rights.

Arguments that the solemnity of executions requires additional modes of access that include the use of video cameras are not persuasive. Courts presented with the specific question of whether video cameras may be banned from the execution chamber have consistently held that such bans do not violate the First Amendment. See Garrett v. Estelle, 556 F.2d 1274 (5th Cir.1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3142, 57 L.Ed.2d 1159 (1978); Entm't Network, Inc. v. Lappin, 134 F.Supp.2d 1002 (S.D.Ind.2001); Lawson v. Dixon, 336 N.C. 312, 446 S.E.2d 799 (1994); Halquist v. Dep't of Corrs., 113 Wash.2d 818, 783 P.2d 1065 (1989). In Garrett, a television-news cameraman brought a First Amendment challenge against a prohibition on the use of television cameras and audio-visual equipment in the execution chamber. Garrett, 556 F.2d at 1275. The Fifth Circuit upheld the prohibition and found no First Amendment right to televise or videotape executions. The Garrett court observed that "[w]hile we agree that the death penalty is a matter of wide public interest, we disagree that the protections of the [F]irst [A]mendment depend upon the notoriety of an issue." Id. at 1279. We find the reasoning of Garrett persuasive. Moreover, even if we were to assume arguendo that executions are so important that public access is required, we believe that videotaping and the use of cameras would not be necessary to vindicate the right of access.

Because Missouri executions take place within prisons, we are also mindful of the Supreme Court's decision in Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). The Supreme Court in Houchins vacated an injunction granted by a district court that required prison officials to give the press access to a notorious area of a prison and to allow the taking of photographs and the use of television cameras. Id. at 15-16, 98 S.Ct. 2588. The Supreme Court ruled that the reporters had no First Amendment right to bring and use television cameras and other cameras within the prison.³ New Life similarly has no First Amendment right to bring video cameras into the Potosi Correctional Center and the execution chamber contained within its walls.

New Life attempts to sidestep the Garrett decision and Houchins by claiming status as a member of the public rather than as a member of the press.⁴ New Life argues that Houchins does not control and that Garrett is irrelevant...