A Legal Right to View Executions, or to Delay Them?

WASHINGTON - EntSun -- The Pentagon's proposal to livestream an execution by firing squad may raise interesting constitutional issues, suggests public interest law professor John Banzhaf, who has written extensively on how some execution-related issues can easily be avoided.

Although courts have repeatedly rejected claims by media outlets that they have a legal right to broadcast executions, the cases involved situations in which the entity carrying out the execution did not wish to permit the process to be broadcast.

But when the entity conducting the execution is willing if not eager to have it broadcast, the legal posture is very different since presenting these images to the public could be considered form of "speech" subject to the First Amendment

This is especially true with regard to the execution of Nidal Hasan because it is being streamed to send a message.

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Defense Secretary Pete Hegseth says he would authorize the livestreaming to send a strong message: "because people need to understand that there's serious consequences for these types of things."

President Donald Trump also said that an argument for showing it is to send a message of deterrence: "By showing it, maybe other people won't be doing what he did."

When events are broadcast to, at least in part, send a message and change public opinion - whether that's MMA fights at the White House or a patriotic parade - they arguably are subject to the First Amendment.

So having chosen to permit the livestreaming of one federal execution to send messages favored by the executive branch, it may be difficult to legally justify refusing to do the same with other federal executions which might send messages opposed by the president, suggests Banzhaf, who notes that similar issues are raised when the president seeks to bar from the White House reporters whom he believes might send messages (make reports) which he opposes.

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Even assuming that using a firing squad to execute murders doesn't by itself constitute "cruel and unusual punishment," livestreaming it to the public might; and raising such an argument could very significantly delay the scheduled execution, argues Banzhaf.

A federal appellate court decision just a few months ago said that forcing a state to permit even a few members of the media to witness an execution risks offending the dignity of the inmate's final moments.

Clearly, livestreaming it to millions, especially since it undoubtedly will be recorded and replayed many times in the future, would much more greatly offend "the dignity of the inmate's final moments," even to the point of possibly infringing on a constitutionally protected interest in privacy, he suggests.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf