Contacts: Bob Lystad, SPJ First Amendment legal counsel, 202/861-1500; Charles Tobin, assistant senior counsel for Gannett Co. Inc., 703/284-6933; Ray Marcano, SPJ president, 937/225-2323
INDIANAPOLIS - The Society of Professional Journalists and other media organizations, including USA Today and National Public Radio, issued a letter today urging Warden Harley Lappin to drop restrictions on journalists who interview inmates at the federal penitentiary in Terre Haute, Ind.
Lappin requires journalists to sign an agreement that places several conditions on their interviews with inmates. The Society opposes restrictions in the agreement stating that journalists cannot disclose the actual recordings of taped interviews with inmates and that no information given by an inmate about another inmate may published.
“The First Amendment calls for a free press, not one that's shackled with the clamps of prior restraint,” said Ray Marcano, SPJ president and regional editor at the Dayton Daily News. “The warden's policies try to tell journalists what they can and can't report and how they should do their job. We strongly urge the warden to modify his policies immediately.”
The Society and the other news organizations signing the letter also oppose a penitentiary policy that permits prison officials to deny future requests for inmate interviews if they believe a member of the news media failed to follow the conditions being imposed.
“The warden should allow access and not impose unnecessary restrictions on newsworthy information and the public's right to know,” said Bob Dubill, executive editor for USA Today.
Paul Walter, First Amendment legal counsel for the The Dallas Morning News, said Lappin's conditions hinder news organizations from fulfilling their obligation to inform their audiences about important issues.
“We believe the guidelines allowed by the warden deny the news media access to the prison that is required under the First Amendment,” Walter said. “The news media cannot do the job it has under the First Amendment when it is subjected to unreasonable restrictions.”
Opposition to the Terre Haute penitentiary's media access policies come at a pivotal time. The penitentiary houses federal inmate David Hammer, who was scheduled to be executed Nov. 15 but recently was granted a stay of execution. If Hammer is executed, it will be the first time since 1963 that the federal government has executed an inmate.
“Given the historic nature of this event, it is simply unconscionable that the warden would try to restrict the amount of information that is disseminated to the public about this particular death row inmate,” said Robert Lystad, First Amendment legal counsel for the Society. “The warden's policy also sets a terrible precedent for future requests to interview federal inmates face-to-face.
“The public deserves to know as much about David Hammer and other federal inmates as possible,” Lystad added. “That includes being able to hear the words David Hammer speaks, and to see his demeanor as he nears his fate.”
Joining the Society in signing the letter sent to Lappin are USA Today, based in Arlington, Va., National Public Radio, The Indianapolis Star, The Tribune-Star in Terre Haute, Ind., The Dallas Morning News, the Hoosier State Press Association in Indianapolis and the Reporters Committee for Freedom of the Press in Arlington, Va.
Copies of the letter were sent to Attorney General Janet Reno, the director of the Federal Bureau of Prisons and the director of the Public Affairs Office of the U.S. Department of Justice.
Letter
Dear Warden Lappin:
We are writing as counsel to the Society of Professional Journalists, the largest organization of journalists in the nation with headquarters in Indianapolis, to comment upon certain conditions that you are imposing for press interviews with inmates at the Penitentiary in Terre Haute. The comments and suggestions contained here are endorsed by USA TODAY, the Tribune-Star in Terre Haute, The Indianapolis Star, National Public Radio, The Dallas Morning News, the Hoosier State Press Association, and the Reporters Committee for Freedom of the Press.
The Society understands and respects the Penitentiary’s need to balance its security and privacy concerns with the First Amendment right of the news media to gather information of public interest and importance. In our view, these interests are not inconsistent. In balancing these interests, the Society implores you to remain mindful that the imposition of the death penalty in the United States remains one of the leading issues of public debate and discussion. These interests are particularly acute today as the Penitentiary in Terre Haute prepares to carry out one of the first executions by the federal government since 1963, that of David Hammer.
We appreciate and applaud your decision — as described in your letter of October 23, 2000 to Stephen Key of the Hoosier State Press Association — to permit face-to-face interviews with identified inmates. Given the nationwide interest in federal executions and inmate Hammer, we trust that you will permit members of the news media to interview Mr. Hammer in person. Direct media access to Mr. Hammer is crucial at this time given the historical nature of this potential event and its implications for American society.
There are two provisions that we understand you are imposing that greatly concern the Society and the other media entities endorsing this letter. We ask that you reconsider and modify these conditions.
Restrictions On Use Of Recorded Interviews
First, while you are permitting members of the news media to record interviews with inmates, you are imposing a condition that prohibits the news media from disclosing all or any part of the actual recording. The Penitentiary’s concerns for safety and privacy cannot justify this condition. Further, it significantly hampers the news media’s right to publish newsworthy information and the public’s right to receive such information.
The media’s use of an inmate’s image and/or voice, as he is speaking, does not create any greater security risk to the Penitentiary than the mere recitation or paraphrase of his words. This restriction fails in particular to maximize the communicative impact brought by the radio and television media. Without access to the recording of an inmate’s voice, the public is denied the best opportunity to assess for itself the demeanor, the inflection, the feelings, and the ultimate acknowledgement — or lack thereof — of the inmate of the consequences of his actions and the criminal justice system.
We also suggest that the criminal justice system will lose an opportunity to reinforce its message of deterrence should the public be deprived of a chance to hear an inmate express his thoughts in his own voice. Instead, your restriction would force journalists to characterize what they believe they saw and heard, rather than let the public make its own decision. The record of the execution process therefore will become more second-hand and subjective. These are significant issues, especially as the United States government is close to carrying out an execution for the first time in nearly four decades. The public has the right to know as much as reasonably possible about this decision from all those concerned, including inmate Hammer.
Moreover, the condition you are imposing goes beyond what the Federal Bureau of Prisons and the United States Supreme Court prescribe. The Bureau of Prison regulations state that an interview may be denied in circumstances such as these only where an interview "would probably cause serious unrest or disturb the good order of the institution." U.S. Department of Justice, Federal Bureau of Prisons, Program Statement § 1480.04-(9)(g)(4), 28 C.F.R. § 540.63(g)(4). See also Program Statement § 1480.04(9)(h)(4), 28 C.F.R. § 540.63(h)(4) (permitting the use of recording equipment during an interview). Nowhere does the Bureau of Prisons permit a warden to condition an interview upon an agreement not to broadcast that interview. Thus, we fail to see a legal basis for imposing the restriction.
The United States Supreme Court repeatedly has held that the government may not prohibit the publication of newsworthy information absent a state interest of the highest order, such as information that threatens national security. See, e.g., New York Times Co. v. United States, 405 U.S. 713 (1971). Nor is it permissible for the government to control the editorial decisions of the news media as to what information may be published or broadcast. See, e.g., Miami Herald v. Tornillo, 418 U.S. 241 (1974). The conditions you are imposing permit face-to-face interviews, but prohibit the manner in which these interviews are disseminated. This is an unconstitutional prior restraint. And, given the historical implications of the execution of a federal prisoner, it is bad public policy. The Society urges you to delete this provision from your policy.
Prohibition On Publishing Statements About Other Inmates
The Society’s second objection concerns your condition that no information given by an inmate about another inmate should be published. While this restriction is no doubt grounded in the Penitentiary’s privacy or security concerns, this blanket restriction is overbroad. The restriction also violates the First Amendment because it is not content neutral. As the United States Supreme Court said:
So long as this restriction operates in a neutral fashion, without regarding to the content of the expression, it falls within the "appropriate rules and regulations" to which "prisoners are necessarily subject," and does not abridge any First Amendment freedoms retained by prison inmates.
Pell v. Procunier, 417 U.S. 817, 828 (1974) (emphasis added). Your condition presumes that everything said by one inmate about another necessarily will create privacy and/or security concerns for your Penitentiary. This presumption is pure speculation and is inherently unreasonable.
Every day, the news media strives to publish newsworthy information without unduly invading the privacy of others. The courts recognize that in support of the media’s mission to cover topics of legitimate public concern, privacy interests must, to a certain extent, give way. That said, the Society understands your concern about the need to maintain security at your Penitentiary. Accordingly, we urge you to adopt the following suggestion made by the Hoosier State Press Association in lieu of your blanket prohibition:
If the inmate being interviewed initiates conversation about other federal inmates, you are cautioned not to publish or broadcast information about other inmates. If you feel such comments are newsworthy, you should bring this issue to the Warden’s attention. The Warden may provide you additional background that could influence your judgment. It also allows the Warden to prepare for any security issues that may arise if you choose to ignore this rule.
This suggestion seems wholly reasonable. It both guarantees the First Amendment rights of the news media to publish newsworthy information and provides you the opportunity to share any concerns you may have as to a particular statement made during an interview. It removes the speculative presumption that every statement made by an inmate about another will, by definition, create privacy or security concerns. The Society urges you to adopt the above proposal in lieu of your blanket prohibition.
Punitive Denial Of Future Interview Requests
s a final note, the Society also is concerned by the final provision of your policy that permits prison officials to deny future requests for inmate interviews if they believe a member of the news media failed to follow the conditions being imposed. The provision as written appears to grant prison officials carte blanche to deny future requests for virtually any reason. The Society fears that prison officials may act simply because they did not "like" a story that previously had been published or broadcast. The Society believes that this provision should be invoked only if an independent third party has thoroughly reviewed the conduct of a member of the news media and has found a serious violation of the restrictions you are imposing.
* * * * *
The Society and the other media entities endorsing this letter appreciate the challenging demands that corrections professionals such as you face, including the safeguarding of security and order at a federal penitentiary. But the Society hopes that you appreciate journalists’ obligation to provide the public with thorough and thought-provoking information about newsworthy matters. An execution of David Hammer would be an historical moment. Please ensure that the public is adequately served by permitting the news media as much access and freedom to report on this event — and similar events in the future — as is reasonably possible.
On behalf of the Society of Professional Journalists, USA TODAY, the Tribune-Star in Terre Haute, The Indianapolis Star, National Public Radio, The Dallas Morning News, the Hoosier State Press Association, and the Reporters Committee for Freedom of the Press, we would appreciate a response to the issues and suggestions contained in this letter. Thank you for your attention to this matter.
Sincerely yours,
Robert D. Lystad
cc: Janet Reno, Attorney General of the United States
Kathleen M. Hawke Sawyer, Director, Federal Bureau of Prisons, U.S. Dept. of Justice
Myron Marlin, Director, Office of Public Affairs, U.S. Dept. of Justice
Mr. Ray Marcano, President, SPJ
Ms. Kyle E. Niederpruem, Immediate Past President, SPJ
Mr. Ian Marquand, Chair, SPJ Freedom of Information Committee
Mr. Bob Dubill, Executive Editor, USA TODAY
Mr. Max Jones, Editor, Tribune-Star, Terre Haute
Mr. Tim Franklin, Editor, The Indianapolis Star
Paul Watler, Esq., Counsel for The Dallas Morning News
Denise Leary, Esq., Deputy General Counsel, National Public Radio, Inc.
Stephen Key, Esq., Counsel, Hoosier State Press Association
Lucy A. Dalglish, Esq., Exec. Dir., Reporters Committee for Freedom of the Press
Resolution
Resolution #5
Access to federal death row inmates
WHEREAS the United States Penitentiary in Terre Haute, Indiana, has received an order from the U.S. District Court for the Middle District of Pennsylvania, to carry out the death sentence of inmate David Hammer;
WHEREAS the federal government has not executed an inmate since March 15, 1963, when Victor Figuer was hanged at the Iowa State Penitentiary for the kidnapping and murder of an Illinois doctor;
WHEREAS the United States Bureau of Prisons has arbitrarily and without seeking public comment set onerous conditions for granting media interviews which in effect ban any face-to-face interviews in the Terre Haute prison;
WHEREAS the policy predicates access to inmates of the institution on acceptance of a signed agreement restricting they types of questions that may be asked;
BE IT THEREFORE RESOLVED that the 2000 convention of the Society of Professional Journalists calls on the Bureau of Prisons to restore the right of the public and media to interview inmates without prior conditions;
BE IT FURTHER RESOLVED, that the convention urges journalists and media outlets to vigorously protest the policy, and redouble their efforts to cover the federal prison system.
Submitted by: FOI Committee, Oct. 28, 2000
