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Texas Flirts with Unconstitutional Media Licensing; New Death Row Rules Define

Opposition Urgently Needed

AUSTIN, TX - So, you want to interview an inmate on Texas' Death Row? If the state implements proposed new rules, you'd better have a license to show you're in the "legitimate" media and won't publish or broadcast anything to undermine the deterrent value of the death penalty.

Those are the key provisions of proposed new rules published in June by the Texas Department of Criminal Justice.

If adopted, the new rules would define "news media" and let a bureaucrat decide who is, or is not, legitimate.

For instance, the rules define "news media" as "news publications, accredited news services such as the Associated Press, licensed radio and television broadcast stations or networks, and government-franchised community cable television systems that originate scheduled news programming."

Within that definition, a "news publication" must possess a second class mailing permit, be published at least weekly and contain at least 25 per cent news of general interest. Alternatively, it can be a magazine with a circulation of at least 25,000 that is published at least monthly and contains a broad range of news and feature articles.

What does not qualify as "news media"? According to the rules, "broadcast programs syndicated by independent producers, or television stations or networks devoted primarily to advocacy purposes or a particular point of view."

Put simply, the Texas Department of Criminal Justice wants to license news media when it comes to accessing death row inmates. Is there another issue, other than prior restraint, that strikes so clearly at the heart of the First Amendment?

Ironically, the rules invoke the First Amendment in the opening "policy" section, stating that news media shall have "reasonable access to death sentenced offenders."

The policy then states that such access must not "detract from the deterrence of crime."

Translation: anyone who writes or broadcasts material that questions the effectiveness or morality of the death penalty--presumably even the prison system itself--need not apply.

The Department of Criminal Justice also includes the same language on media definitions and "deterrence of crime" in an executive directive on news media relations (ED-02.40.) That directive was issued June 23 and already is on the books.

Michael Ward of the Austin American Statesman and SPJ's South Texas Sunshine Chair, said the Department is making a blatant attempt to control what the public reads and sees about capital punishment in the Lone Star State.

Ward's outgoing North Texas counterpart, Charles Davis, an expert on prison access policies, has called the rules a "constitutional stinker." Ward said Texas' fondness for the death penalty has drawn attention from all sectors of the American media, especially since Karla Faye Tucker was executed on February 3, 1998. Ward points to "three hanky" coverage of the Tucker case by "The 700 Club," as one example of domestic coverage the Texas administration would like to suppress. He also noted that NBC "Dateline," ABC "Nightline" and "Oprah" have focused on capital punishment in Texas.

In addition, there has been increasing interest--and unflattering portrayals--from media in Europe, Canada and Mexico. As a result, Texas prison officials "just don't want to fool with foreign troops," Ward said.

Comments from the public on the proposed death row visitation rules will be taken until July 2. Tell the Texas Department of Criminal Justice to let these rules die swiftly. They are a direct violation of First Amendment rights.

Comments can be mailed to:
Carl Reynolds
General Counsel
Texas Department of Criminal Justice
P.O. Box 13084
Capitol Station
Austin, TX 78711
Phone: (512) 463-9988

If you don't believe raising your voice on behalf of FOI helps, read this fromBill Hirschman at the Fort Lauderdale Sun-Sentinel (received 6/23/99):

"Amazingly, Gov. Bush vetoed the bill last week that would have restricted access to nursing home inspection records. This can be only because of the letters, editorials and e-mails that we First Amendment supporters wrote. Many thanks to all of you who helped.

It has been an unusually successful year for us all and we have reason to be proud. Besides this victory, we also lobbied successfully to have several bills die in the legislature including proposal closing off more public records and public meetings.

This should be an encouragement to speak out next year when, no doubt, other attempts will be mounted to dilute our access laws."

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