Entertainment Network, Inc. v. Lappin
| Decision Date | 18 April 2001 |
| Docket Number | No. TH01-0076-C-T/H.,TH01-0076-C-T/H. |
| Citation | 134 F.Supp.2d 1002 |
| Parties | ENTERTAINMENT NETWORK INC., Plaintiff, Liveontheweb.com, Inc., a Florida Corporation, Intervening Plaintiff, v. Harley LAPPIN, in his official capacity as Warden of the United States Penitentiary Terre Haute; Kathleen Hawk Sawyer, in her official capacity as Director of the United States Federal Bureau of Prisons; and John Ashcroft, in his official capacity as the United States Attorney General, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Derek A. Newman, Newman & Newman, Seattle, WA, Stephen L. Trueblood, Trublood Bitterman Lewis & Rodway, Terre Haute, IN, for Plaintiff.
Gerald A. Coraz, United States Attorney's Office, Indianapolis, IN, for Defendants.
ENTRY FOLLOWING TRIAL
The relief sought in this case is the logical extension of Marshall McLuhan's prophetic proposal from the 1960s that the "medium is the message." Federal regulations guarantee that representatives of the media are entitled to observe a federal execution in the same manner as other citizen witnesses. No restrictions whatsoever are placed on how the media representatives report on what they observe. But that is not enough for the Plaintiff and the Intervening Plaintiff-they seek not just to view the execution — they seek to film it and broadcast it simultaneously over the Internet so that anyone willing to pay a fee for viewing this event can do so. They are not satisfied that the traditional means of reporting such events — eyewitness accounts by experienced reporters — is sufficient to convey the magnitude of this occasion. What these media organizations seek is unprecedented in that a live media broadcast of an execution has never occurred in the history of the death penalty in this country. It is also unprecedented as that term is used in law-no court in this nation has ever ordered relief of this nature before.
Plaintiff Entertainment Network, Inc. ("ENI") is a Florida corporation which provides news, entertainment, and information via the Internet World Wide Web. Intervening Plaintiff Liveontheweb.com, Inc. is also a Florida corporation and is engaged in the business of broadcasting and allowing public broadcasting of news, programs, and entertainment via the Internet World Wide Web. The Defendants are Harley Lappin, the Warden of the United States Penitentiary at Terre Haute (USPTH), Kathleen Hawk Sawyer, Director of the Federal Bureau of Prisons (BOP), and John Ashcroft, United States Attorney General. The USPTH is an institution operated by the BOP.
ENI filed this action for declaratory and injunctive relief, challenging the constitutionality of 28 C.F.R. § 26.4(f), prohibiting photographic, audio and visual recording devices at federal executions. Liveontheweb.com, Inc.'s intervention is for the limited purpose of securing the same right of access to which ENI is determined to possess. Counsel for Liveontheweb.com, Inc. assured the court that it had no arguments to add to those submitted by ENI, so their claims rise or fall together. Because Liveontheweb.com, Inc.'s legal claims in this action are fully duplicative of those of ENI, the ruling here will often refer only to the original Plaintiff, ENI.
This cause came before the court for trial on Tuesday, April 17, 2001. The parties were present through their counsel of record. In addition, a motion to intervene was granted, pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, over the original parties' objections.
This Entry sets forth the court's findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure and also constitutes its findings and conclusions with respect to the Defendants' motion to dismiss.
Timothy McVeigh has been sentenced to death as a result of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, on April 19 1995, which resulted in the deaths of 168 people. United States v. McVeigh, 153 F.3d 1166 (10th Cir.1998), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). McVeigh is incarcerated at the USPTH, and his execution is scheduled to be carried out through lethal injection at the USPTH on May 16, 2001.
The scheduled execution of Timothy McVeigh has drawn and will draw considerable media and public attention, just as did the investigation of the Oklahoma City bombing, the trial of Timothy McVeigh, and the sentencing and post-sentencing matters associated with the case. ENI and Liveontheweb.com, Inc. are part of the media.
"The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof...." 18 U.S.C. § 4001(b)(1). The Attorney General has delegated this authority to the BOP through 28 C.F.R. § 0.96 (1997) ().
BOP regulations specify who shall be permitted to attend federal executions. Those regulations provide, in pertinent part:
(c) In addition to the Marshal [a United States Marshal designated by the Director of the BOP] and Warden, the following persons shall be present at the execution:
(1) Necessary personnel selected by the Marshal and Warden;
(2) Those attorneys of the Department of Justice whom the Deputy Attorney General determines are necessary;
(3) Not more than the following numbers of persons selected by the prisoner:
(i) One spiritual adviser;
(ii) Two defense attorneys; and
(iii) Three adult friends or relatives; and
(4) Not more than the following numbers of persons selected by the Warden:
(i) Eight citizens; and
(ii) Ten representatives of the press.
28 C.F.R. § 26.4(c). In addition, and central to the dispute in this case, another BOP regulation provides that:
No photographic or visual or audio recording of the execution shall be permitted.
Notwithstanding the above regulation, ENI sought permission from the BOP through a letter dated March 20, 2001, to serve as the media pool witness to the execution of McVeigh, and in addition requested permission to bring a small camera to the witness chamber of the execution and to record and simultaneously broadcast the execution via the Internet to the public.1 In the alternative, ENI requested that the BOP provide ENI with access to a live audiovisual transmission of the execution, and permit ENI to broadcast that material. The BOP responded on March 28, 2001, and in such response denied ENI's requests. The BOP cited the regulation quoted above and provided additional reasons for its decision. Specifically, the BOP stated in its letter that the government interests furthered by the prohibition on photographic, audio and visual recording of executions are "not sensationalizing the event, maintaining prison security and good order, and respecting the privacy interests of the condemned individual." The filing of this action followed, and has developed as already described.
At trial, the parties introduced a written stipulation, the content of which is the following:
1. Attorney General John D. Ashcroft has approved a request by survivors and victims' families of the April 19, 1995 bombing of the Alfred P. Murrah building in Oklahoma City, Oklahoma to be permitted to view in Oklahoma City a closed circuit transmission of the execution of Mr. Timothy McVeigh.
2. Federal authorities will provide a highly reliable and secure closed circuit audio and video transmission from the United States penitentiary in Terre Haute, Indiana to the designated site in Oklahoma City.
3. The broadcast will use encryption technology integrated with state-of-the-art video-conferencing over high-speed digital telephone lines.
4. The closed circuit transmission will be instantaneous and contemporaneous and no recording, permanent or temporary, will be made.
5. The transmission to the victims in the Oklahoma City area will begin at the same time the curtain is open for viewing by the victim witnesses in the execution facility. The Bureau of Prisons and other federal officials will be responsible for ensuring that only authorized survivors and family members of victims, and designated counselors and government representatives will be permitted to view the transmission.
6. No recording, audio or visual, will be permitted at the designated site in Oklahoma City where the transmission is to be made. The Bureau of Prisons and other federal officials present at the designated site in Oklahoma City, where the transmission is to be made, will ensure that the survivors and victims' families are informed as to the prohibition regarding recording, either through audio or visual means, of the transmission of the execution and that no such recording is made.
Also at trial ENI introduced, over the objection of the Defendants, the affidavit of one of ENI's attorneys, Stephen L. Trueblood. Mr. Trueblood's affidavit recites the hearing of public statements by the United States Attorney General, John Ashcroft, explaining that all the citizens of the United States were victims of the crimes perpetrated by Mr. McVeigh.
This case arises under the United States Constitution and the laws of the United States and presents a federal question within this court's jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. §§ 1331, 1361 and 2201. Venue in this action is appropriate pursuant to 28 U.S.C. § 1391(e).
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