When a state executes a prisoner, can it bar television cameras on the ground that it would be in poor taste to let the condemned person's final moments be seen on the tube?
If a state lets reporters with pens and pads witness an execution, can it keep out TV cameras and recording equipment? Can it bar the press altogether?
Will a Supreme Court that bars electronic gear from its own chamber, for proceedings as bloodless as oral argument, permit the same gear in the death chamber?
These are among the questions raised in the court by a decision in which the Fith U.S. Circiut Court of Appeals held that the state of Texas was empowered to bar a TV braodcaster from a planned electrocution in the state prison at Hunstville. After the Supreme Court justices return from the current recess on Tuesday, they will announce whether they will review the decision or let it stand.
The justices are considering the case against the background of two 1974 rulings that the press has no constitutional right of access to prisons beyond that afforded the general public.
For 88 years, the Supreme Court has recognized that a state has a right to restrict attendance at executions. Texas has barred the general public altogether since 1920. The state has had no executions since 1964. Six years ago, the Supreme Court struck down the Texas death-penalty law as unconstitutional.
Texas then amended the law to satisfy procedural requirements laid down by the Supreme Court. The first to die was to be Jerry L. Jurek, who in 1974 was convicted of murder and the attempted rape of a 10-year-old girl.
These developments generated strong press and public interest in capital punishment. In November 1976, TV reporter-producer Tony Garrett of KERA, the Dallas affiliate of the Public Broadcasting System, asked the state Department of Corrections to let him film, for possible use on news telecasts, the execution of a convicted murderer.
The department responded by adopting a policy that would prohibit cameras and recorders, but would admit a "pool" reporter from each of the two major wire services into the death chamber and allow other reporters to watch on closed-circuit TV. Soon afterward, however, department director W.J. Estelle Jr. repudiated the policy in favor of excluding all reporters from the death chamber.
Even the repudiated policy would have excluded Garrett and his camera. And so, with the Dallas affiliate of the American Civil Liberties Union representing him, he filed suit.
Meanwhile, the Supreme Court issued a stay of the Texas executions.Currently, the state has 65 persons on deaths row.
In January 1977, Chief Judge William M. Taylor Jr. of the U.S. District Court ruled for Garrett. He held that the 1974 Supreme Court rulings on press access to prisoners didn't apply because they affected reporting of "day-to-day operation of the prisons."
In contrast, he said, the press here seeks "to report on one of the most important and controversial public issues of the day; capital punishment. . .the ultimate act of state" and "an act of the collective wills of all the people."
Do the distinctions between the print and electronic press apply to coverage of an execution? Taylor recalled a Supreme Court ruling excluding cameras from trials on the ground that they were disruptive and can make a fair trial more difficult. He also noted the exclusion of cameras from "deliberative" proceedings, such as oral argument in all federal appeals courts, including the Supreme Court.
But an execution "is an entirely mechanical proceeding," Taylor wrote. "It is not seriously contended that a single television reporter, carrying a compact, quiet, portable film camera requiring no special lighting, can in any way disrupt or interfere with his state proceeding."
The state argued that telecasts of executions would be "an offense to human dignity," "distasteful" or "shocking."
But for officials to make the decisions is "dangerous," because they could go on to bar cameras from "other public facilities where public officials are involved in illegal, immoral, or other improper activities that might be 'offensive'. . ."Taylor said.
What Taylor found "inconceivable" the Fifth Circuit, eight months later, found just and necessary. In an opinion reversing Taylor, Judge Robert A. Ainsworth Jr. wrote that the First Amendment protection of news gathering "does not extend to matters not accessible to the public generally, such as filming of executions."
He agreed with Taylor that the death penalty "is a matter of wide public interest," but said that First Amendment protections do not hinge "upon the notoriety of an issue."