ST. LOUIS (CN) - Hustler publisher and free speech advocate Larry Flynt lost his appeal to unseal court records on Missouri's use of lethal injection drugs when the Eighth Circuit ruled Tuesday that the government's interest in carrying out executions outweighs his First Amendment rights.
Flynt, who has called for the abolition of the death penalty, challenged the credentials of two execution team members, including a board-certified anesthesiologist. He argued the Eighth Circuit should unseal records about the two members so the public could learn more about the drug protocol used to execute inmates.
Represented by the American Civil Liberties Union of Missouri, Flynt's journey through the court system has been long and winding.
The Hustler magazine’s publisher opposes the death penalty but his testimony failed in 2013 to stop Missouri from executing the serial killer, Joseph Franklin, who shot him in 1978 and left him confined to a wheelchair.
Flynt had wanted to have his shooter’s sentence commuted to life in prison, and he moved to intervene in a lawsuit filed by Franklin and other death-row inmates seeking information about Missouri’s execution protocol.
However, on the date of Franklin’s execution, a federal judge denied Flynt’s request as moot in a one-sentence ruling that said Flynt had only a generalized interest in the litigation.
Courthouse News Service, The New York Times, The Washington Post and other media outlets filed a supporting brief as the porn mogul appealed to the Eighth Circuit.
The St. Louis-based federal appeals court reversed and remanded the case in 2015.
But Flynt hit another roadblock when he moved to unseal the actual records under the First Amendment.
U.S. District Judge Beth Phillips found that concerns over threats and harassment against execution team members and the state's right to carry out the executions trumped the public's right to see the execution protocol records.
On Tuesday, a three-judge panel of the Eighth Circuit affirmed Phillips’ decision.
"The personal and professional safety of one or more members of the execution team, as well as the interest of the state in carrying out its executions, were sufficiently in jeopardy to overcome the common-law right of public access to the records," U.S. Circuit Judge C. Arlen Beam wrote in the 12-page ruling.
Missouri Assistant Attorney General Greg Goodwin did not immediately respond to requests for comment.
Tony Rothert, legal director for the ACLU of Missouri, said in a statement that the Show-Me State “has a pattern when it comes to public information.”
“When they want to keep something secret, it’s often because they have something to hide,” Rothert said. “The Department of Corrections continues to cloak its lack of professional and ethical standards by denying the public’s right to know.”
Judge Beam wrote that there was no way to redact the documents without revealing the team member's names or licensing information. If the court released the records it would "effectively eviscerate the state's ability to carry out executions by jeopardizing its ability to have medical professionals on the execution team," he said.
"At the bottom line, this dispute is about the identity of medical members of the execution team. Flynt's stated rationale for wanting this information - to check the professional credentials of these members - is in direct and perilous conflict with the state's superior rationale of protecting the identity of these parties," Beam wrote.
Beam was joined by U.S. Circuit Judges James Loken and Jane Kelly, who wrote a concurring opinion.
Franklin, a serial killer who was sentenced to death for a murder in the St. Louis area, was executed in 2013 over Flynt's protests. The porn mogul argued that Franklin should be sentenced to life in prison instead.
Franklin confessed to shooting Flynt in March 1978 and said he attacked him because of the inclusion of images of interracial sex in Hustler. Prosecutors never charged him for the shooting, which left Flynt paralyzed from the waist down and wheelchair-bound.
In addition to publishing the Hustler magazine, Flynt has business interests in pornographic videos, brand licensing, real estate and the Lucky Lady Casino in Gardena, Calif.
"I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment," Flynt said in 2013. "But, until the death penalty is abolished, the public has a right to know the details about how the state plans to execute people on its behalf."
The ACLU says it has filed multiple lawsuits against the Missouri Department of Corrections so the public can learn more about how the state executes inmates. That includes an effort to reveal the identity of the pharmacy that was supplying the state's lethal injection drugs.
A BuzzFeed investigation published last month found that Missouri had obtained execution drugs after a nationwide shortage to put 17 inmates death. The report, which called into question the safety of the state’s execution protocol, revealed the mystery supplier of the drug pentobarbital as Foundation Care, which has been accused of using hazardous pharmaceutical procedures.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.