This Oct. 9, 2014, file photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. Ruling in an Arizona case, a panel of the 9th U.S. Circuit Court of Appeals recently ruled that those watching the execution process have a First Amendment right to hear the process as well as see it. (AP Photo/Sue Ogrocki, used with permission from The Associated Press)
The public has a First Amendment right of access not only to view executions of inmates but also to hear the sounds during the process, a federal appeals court panel has ruled in a challenge to Arizona’s death penalty process.
However, the appeals court also ruled that there is no First Amendment right to force the state of Arizona to disclose information regarding the drugs used in the execution and no First Amendment right to disclose the qualifications of each member of the execution team. The appeals court also ruled that there is no First Amendment claim to such material under the theory that it is required in order to allow inmates to access the courts.
Microphones were turned off during the execution so sounds could not be heard
Several inmates filed the original lawsuit in 2014. One of those original plaintiffs was Joseph Wood, who was executed in July 2014. According to journalists who covered the event, Wood appeared to be in agony during the execution process. However, microphones are turned off during the execution process, so journalists could not fully report on the process.
After Woods’ execution, the First Amendment Coalition joined the inmates as a plaintiff.
These claims included several First Amendment-based claims, including that
- The state must allow witnessing individuals to hear, as well as see, the entire execution process;
- The state must disclose information regarding the drugs that are used in the lethal-injection process; and
- The state must disclose information about the persons who are part of the execution team.
The lawsuit included another First Amendment theory – that the inmates had a First Amendment right to all this information based on the right to access the courts.
A federal district court dismissed the claims. The district court reasoned that while there is a First Amendment right to view the execution, there is no concomitant right to hear sounds from the execution process. The district court rejected the other claims as well.
9th Circuit panel says access to governmental proceedings includes a right to hear
On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed the district court’s opinion in part and affirmed it in part in its September 17, 2019, opinion in First Amendment Coalition of Arizona v. Ryan.
Regarding the sounds claim, the 9th Circuit panel agreed with the inmates and the First Amendment Coalition. “We conclude that the First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions in their entirety,” Judge Paul J. Watford wrote for the panel.
The court applied a two-part test developed by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court (1986). That two part test asks: (1) whether the process has historically been open to the public; and (2) whether public access plays a positive role in the process.
9th Circuit panel: Executions have traditionally been open to the press and public
Applying this test, the 9th Circuit panel reasoned that historically when executions were open to the press public, persons could hear the entire execution process. Furthermore, Watford wrote that “[t]he plaintiffs have also plausibly alleged that such access would play a significant role in the proper functioning of capital punishment.” The court recognized that the plaintiffs submitted historical evidence and examples of where “media coverage of executions has sparked public debate about the appropriate method of execution in Arizona.”
Watford added that “[l]ifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the State.”
The panel then analyzed whether Arizona’s muting of the execution process to the witness room was reasonably related to legitimate penological objectives or rather was unconstitutional and burdened the plaintiffs’ First Amendment rights. Watford, writing for the panel, reasoned that the plaintiffs have plausibly alleged a valid First Amendment claim even under this deferential standard of review.
However, the 9th Circuit affirmed the district court on the other two First Amendment claims involving an alleged right of access to information about the lethal injection drugs and the persons carrying out the execution process. For access to the lethal injection drugs, the 9th Circuit panel relied on two other circuit court of appeals – the 6th Circuit in Phillips v. DeWine (2016) and the 8th Circuit in Zink v. Lombardi (2015) – which had rejected similar claims.
The 9th Circuit hinted that inmates may have a right to such information under procedural due process but they have no such right under the First Amendment. Next, the 9th Circuit panel also ruled that there is no First Amendment right of access personal information about the persons who participate in the execution process.
Finally, the appeals court determined that the plaintiffs’ claim to such information fails under the theory of access to the courts. “The Supreme Court has explained that the First Amendment right of access to the courts does not include the right of prisoners to discover grievances and to litigate effectively once in court,” Watford wrote.
Judge Martha Berzon authored a partial dissenting opinion. She agreed with the bulk of Watford’s analysis but dissented on the access to the courts theory, writing: “I write separately to call attention to the inmates’ plausible allegations that Arizona, through its deliberate concealment of information about its execution process, has violated their First Amendment right of access to the courts.”
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).