Key Points
- The Seventh Circuit affirmed denial of the preliminary-injunction motion.
- The panel held that no qualified First Amendment access right attaches to viewing Indiana executions.
- The court found no historical tradition of executions open to the press and general public.
- Indiana’s policy was held not to discriminate against the press under the Press Clause.
The Court of Appeals for the Seventh Circuit affirmed the district court’s denial of a preliminary injunction in the media plaintiffs’ challenge to Indiana’s limits on execution witnesses. The court held that the plaintiffs had not shown a likelihood of success on their claims that the First Amendment provides a qualified right of access to executions or that Indiana’s policy discriminates against the press.
Indiana permits specified officials, advisers, invited guests of the prisoner, and certain immediate family members of a victim to attend executions. Members of the public may attend only if invited by the prisoner, and the same condition applies to media personnel. The Department of Correction’s guidelines allow journalists to remain in a designated area outside the execution chamber until an execution ends, but do not permit them to witness it unless the prisoner includes them among invited guests.
On the access claim, the panel said the Supreme Court’s experience-and-logic framework has been used for traditional criminal proceedings and related court materials. An execution occurs after guilt has been determined, sentence imposed, and the case terminated, the court reasoned. It also concluded that greater public scrutiny of an execution does not serve the judicial-process functions identified in access cases, including checking judges and litigants or fostering more accurate factfinding.
The panel further held that the plaintiffs could not satisfy the historical component even if the experience-and-logic test applied. While executions were public at the Founding, the court described a long-standing movement toward private executions beginning in the nineteenth century. Limited admission of selected witnesses, including in some instances members of the press, did not establish a history of executions open to the press and general public, the panel concluded. The court expressly disagreed with the Ninth Circuit’s conclusion that a tradition of limited public access satisfied the experience prong.
The court also rejected the Press Clause challenge. It found that Indiana’s statute and prison guidance apply to the press and public alike: neither can attend unless within an authorized witness category. The presence of family members, advisers, prison officials, and others with direct connections to the inmate, victim, or procedure did not make the policy press-specific, the panel held. The decision leaves Indiana’s witness restrictions in place while the underlying case proceeds.