First Amendment? Not at Executions, Oklahoma Says

     OKLAHOMA CITY (CN) – The First Amendment did not give the public or news media “guaranteed access” to the botched execution of Clayton Lockett, Oklahoma prison officials said Tuesday.
     The Oklahoma Observer, Guardian U.S. and two reporters sued Oklahoma Department of Corrections Director Robert Patton and Oklahoma State Penitentiary Warden Anita Trammell in Federal Court in August.
     They claim that while Lockett writhed in agony in the death chamber, the media were deprived of the right to observe his execution when prison officials drew a shade .
     “The press was unable to observe Lockett’s final moments or eventual death,” the complaint stated. “As a result, the public was deprived of objective accounts as to whether, at the time of his death, the state was still attempting to execute Lockett, or in the alternative, attempting to provide medical care after calling off his execution.”
     In a motion to dismiss filed Tuesday, prison officials say the public generally has no First Amendment right to access to prison and executions.
     “As a general rule, the news media ‘have no constitutional right of access to prisons or their inmates beyond that afforded the general public,'” the 28-page motion states.
     “The Constitution in no way requires that the government reveal information or procedures to the press that are not also available to the public. The Supreme Court has never found any ‘First Amendment guarantee of a right of access to all sources of information within government control.'”
     Prison officials say the press has “state-granted, qualified permission” to be at executions, which is given by the state because executions “serve and advance public policy interests of transparency and integrity of process.”
     They say they have “statutory discretion” to control access to further legitimate interests, including institutional security and protection of the identities of execution team members.
     They disagree with the media’s demands as to the nature, extent or quality of the access given, and say their execution policies reflect “the proper balance” between competing interests of transparency and security.
     “Plaintiffs’ claims that federal law overrides these state interests and grants them unfettered access to Oklahoma’s prisons in the lead up to an execution simply has no basis in the law,” the motion states. “These plaintiffs have access to executions in Oklahoma. They had access to Clayton Lockett’s execution, and were able to report on what transpired during that execution, and they will have access to executions going forward, with that same ability to report on what transpires during those executions. Their claim of a right to dictate to the state the nature and extent of their access, even where such access might compromise institutional security and violate state privacy laws, can and should be rejected.”
     The defendants also contest the media’s claim that they are unable to report thoroughly on executions without the “extensive access” they want.
     “Plaintiffs’ aspiration of thorough reporting does not create a First Amendment right of special access to executions,” the motion states. “Even if this court accepted plaintiffs’ premise that making more of the execution process accessible to the witnesses is a good and desirable idea, ‘[w]e must not confuse what is good, desirable, or expedient with what is constitutionally commanded by the First Amendment.'”
     The defendants also claim that they have immunity under the 11th Amendment and that the plaintiffs lack standing to sue.
     Three weeks ago, prison officials announced new execution protocols in the wake of an investigation into Lockett’s execution ordered by Gov. Mary Fallin. The changes greatly reduce the number of media witnesses to executions, from 12 to 5. Preference will be given to media from the area where the crime was committed and to The Associated Press.
     The plaintiffs’ attorneys with the ACLU of Oklahoma could not be reached for comment Tuesday evening.

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