Rev. Larry Rice v. Gary Kempker ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2979
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Reverend Larry Rice; Reverend *
Raymond Redlich; New Life *
Evangelistic Center, Inc., *
*
Appellants, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Gary Kempker; State of Missouri; *
George Lombardi; Don Roper, *
*
Appellees. *
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Submitted: February 11, 2004
Filed: July 9, 2004 (Corrected July 15, 2004)
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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BOWMAN, Circuit Judge.
Plaintiffs Reverend Larry Rice, Reverend Raymond Redlich, and New Life
Evangelistic Center, Inc. (hereinafter collectively referred to as New Life) argue that
the policy of the Missouri Department of Corrections banning cameras in the
execution chamber violates plaintiffs' First Amendment rights of public access. The
District Court1 disagreed and granted summary judgment for the defendants, all of
whom are officials of the Missouri Department of Corrections (the Department). We
affirm.
New Life requested permission from the Department to videotape the execution
of convicted murderer Daniel Basile. The Department, acting through Director Gary
Kempker and officials George Lombardi and Don Roper, applied the Department's
Media Policy and denied New Life's request. The Media Policy states simply, "No
cameras or tape recording device of any type shall be allowed in the witness area of
the execution room or the surrounding area. However, each media witness
representative shall be allowed to take paper, pencil and sketch pad to the witness
area." Mo. Dep't of Corrs., Media Policy § 14B. New Life, alleging that the Media
Policy violates the First Amendment, brought suit in the District Court seeking a
declaratory judgment and an injunction to prevent the enforcement of the no-camera
policy. At the summary-judgment stage of the ensuing proceedings, the defendants
argued that the Media Policy did not violate any of the freedoms protected by the
First Amendment. In the alternative, the defendants argued that if the Media Policy
were found to infringe upon a constitutionally protected liberty, any such
infringement was outweighed by legitimate penological interests and should be
evaluated under the standards set forth in Turner v. Safley, 482 U.S. 78, 89 (1986).
The District Court found that a ban on videotaping executions burdened New Life's
constitutional right of access, but agreed with the defendants that the infringement
was reasonable in light of legitimate penological concerns. Because we conclude that
the Media Policy does not infringe on liberties protected by the First Amendment, we
affirm the judgment of the District Court.
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
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We review grants of summary judgments de novo, applying the same Rule 56
standards that govern all federal courts in their decisions on motions for summary
judgment. See Fed. R. Civ. P. 56; Southern Union Co. v. Mo. Pub. Servs., 289 F.3d
503, 505 (8th Cir. 2002).
Initially, we must decide whether the execution of Daniel Basile has rendered
the appeal moot. We agree with the District Court that the case is not moot and falls
squarely within the "capable of repetition, yet evading review" exception to the
mootness doctrine found in Southern Pacific Terminal Co. v. Interstate Commerce
Commission, 219 U.S. 498, 515 (1911) (holding that a federal court may retain
jurisdiction in an otherwise moot case if the challenged action is too short in duration
for timely review and there is a reasonable expectation that the complaining party will
be subject to the same action again). See Webster Groves School District v. Pulitzer
Publishing Co., 898 F.2d 1371, 1373 (8th Cir. 1990). Both of the factors supporting
the mootness exception exist in the present case: once all avenues for challenging a
sentence of death have been exhausted, and a final execution order entered, the
execution usually, as here, occurs within a rather short period of time, and it is very
likely that New Life will seek to videotape another Missouri execution. Accordingly,
the appeal is not moot.
We turn to the merits of the case. New Life argues that the First Amendment
mandates that the public be allowed to videotape an execution. Seeking to persuade
this Court to go where no court previously has gone, New Life relies on a two-step
argument. The first step New Life asks us to take is to rule that the First Amendment,
as interpreted by Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)
(holding that the First Amendment requires criminal trials to be open to the public),
requires executions to be open to the public. New Life then argues that prohibitions
on videotaping are impermissible burdens on its constitutional right of access to
executions. We find no need to engage in this two-part inquiry and instead address
the issue directly and hold that the First Amendment does not protect the use of video
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cameras or any other cameras or, for that matter, audio recorders in the execution
chamber.
Because we hold that neither the public nor the media has a First Amendment
right to videotape, photograph, or make audio recordings of government proceedings
that are by law open to the public, we find it unnecessary to decide whether
executions must be open to the public.2 While Richmond mandates that criminal
trials be open to the public, no court has ruled that videotaping or cameras are
required to satisfy this right of access. Instead, courts have universally found that
restrictions on videotaping and cameras do not implicate the First Amendment
guarantee of public access. See Whiteland Woods v. Township of West Whiteland,
193 F.3d 177, 184 (3rd Cir. 1999) (holding that public has no right to videotape
Planning Commission meetings that were required to be public); United States v.
Kerley, 753 F.2d 617, 621 (7th Cir. 1985) (holding that the public has no right to
videotape trial even when the defendant wishes it to be videotaped); Westmoreland
v. Columbia Broadcasting System, Inc., 752 F.2d 16, 23 (2d Cir. 1984) ("There is a
long leap, however, between a public right under the First Amendment to attend trials
and a public right under the First Amendment to see a given trial televised."), cert.
2
Currently, only one federal appeals court has addressed this issue squarely and
has held that executions must be made public. See Cal. First Amend. Coalition v.
Woodford, 299 F.3d 868, 877 (9th Cir. 2002); but cf. Holden v. Minnesota, 137 U.S.
483, 491 (1890) (holding that the Minnesota's restriction of access to executions did
not violate the ex post facto clause). We need not decide this issue at this time
because New Life was allowed to attend Daniel Basile's execution, and the
Department does not seek to prevent the public from attending executions, even
though space limitations may result in the exclusion of some members of the public
who might wish to attend. In any event, state law requires, inter alia, that at least
eight members of the public attend each execution. Mo. Rev. Stat. § 546.740. The
record reveals that the viewing room of the execution chamber in the Missouri State
Penitentiary at Potosi, where Missouri executions are carried out, accommodates at
most approximately thirty-one spectators.
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denied, 472 U.S. 1017 (1985); United States v. Hastings, 695 F.2d 1278, 1284 (11th
Cir.), cert. denied, 461 U.S. 931 (1983) (holding that the press had no right to
videotape criminal trials); cf. Nixon v. Warner Communications Inc., 435 U.S. 589,
609 (1978) (holding that no First Amendment right existed to publish or copy exhibits
displayed in court); United States v. McDougall, 103 F.3d 651, 659 (8th Cir. 1996),
cert. denied, 522 U.S. 809 (1997) (holding that First Amendment right of access does
not extend to videotaped deposition testimony of then-President Clinton). As the
Second Circuit has observed, "the First Amendment right of access is limited to
physical presence at trials." United States v. Yonkers Bd. of Educ., 747 F.2d 111,
113 (2d Cir. 1984). Based on the overwhelming weight of existing authority, as well
as on our general understanding of First Amendment principles, we hold that the
Media Policy banning the use of video cameras and other cameras in the execution
chamber does not burden any of New Life's First Amendment rights.
Arguments that the solemnity of executions requires additional modes of access
that include the use of video cameras are not persuasive. Courts presented with the
specific question of whether video cameras may be banned from the execution
chamber have consistently held that such bans do not violate the First Amendment.
See Garret v. Estelle, 556 F.2d 1274 (5th Cir. 1977), cert. denied, 438 U.S. 914
(1978); Entm't Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind. 2001);
Lawson v. Dixon, 446 S.E.2d 799 (N.C. 1994); Halquist v. Dep't of Corrs., 783 P.2d
1065 (Wash. 1989). In Garret, a television-news cameraman brought a First
Amendment challenge against a prohibition on the use of television cameras and
audio-visual equipment in the execution chamber. Garret, 556 F.2d at 1275. The
Fifth Circuit upheld the prohibition and found no First Amendment right to televise
or videotape executions. The Garret court observed that "[w]hile we agree that the
death penalty is a matter of wide public interest, we disagree that the protections of
the [F]irst [A]mendment depend upon the notoriety of an issue." Id. at 1279. We find
the reasoning of Garret persuasive. Moreover, even if we were to assume arguendo
that executions are so important that public access is required, we believe that
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videotaping and the use of cameras would not be necessary to vindicate the right of
access.
Because Missouri executions take place within prisons, we are also mindful of
the Supreme Court's decision in Houchins v. KQED, Inc., 438 U.S. 1 (1978). The
Supreme Court in Houchins vacated an injunction granted by a district court that
required prison officials to give the press access to a notorious area of a prison and
to allow the taking of photographs and the use of television cameras. Id. at 15-16.
The Supreme Court ruled that the reporters had no First Amendment right to bring
and use television cameras and other cameras within the prison.3 New Life similarly
has no First Amendment right to bring video cameras into the Potosi Correctional
Center and the execution chamber contained within its walls.
New Life attempts to sidestep the Garret decision and Houchins by claiming
status as a member of the public rather than as a member of the press.4 New Life
argues that Houchins does not control and that Garret is irrelevant insofar as New
Life is not a member of the press. New Life asserts that because the press in Garret
and Houchins attempted to claim additional privileges not enjoyed by the public, the
holdings in those cases do not apply to New Life as a member of the public. We are
unpersuaded. In Pell v. Procunier, 417 U.S. 817 (1974), and its companion case,
Saxbe v. Washington Post Co., 417 U.S. 843 (1974), the Supreme Court, in holding
that the press had no right to interview specific prison inmates, explained that the
press enjoyed no special right of access to information not enjoyed by the public.
3
A concurring opinion by Justice Stewart indicated the possibility that cameras
or pictures may be required for the press to fulfill its First Amendment function in
certain situations. Houchins, 438 U.S. at 17, (Stewart, J., concurring). But New Life
has eschewed any status as a member of the press, as discussed infra, so we need not
consider the force or validity of Justice Stewart's suggestion.
4
We note that New Life Evangelical Center, Inc. owns and operates television
and radio stations in Missouri, Kansas, Illinois and Arkansas.
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New Life attempts to turn this principle on its head and argue that as a member of the
public, they enjoy a special right of access not available to the reporters in Garret and
Houchins. We disagree and conclude that whether New Life holds itself out as a
member of the public or the press, it does not enjoy a First Amendment right to
videotape executions.
The Media Policy's ban on videotaping perhaps could be considered a "content-
neutral time, place, and manner" restriction on speech. A "time, place, and manner"
restriction on speech may be upheld if it "serves a substantial governmental interest
and do[es] not unreasonably limit alternative avenues of communication." City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). The defendants have
offered several substantial governmental interests involving the safety and security
of the prison, a set of interests of the sort that long has been given considerable
deference by federal courts. See Turner, 482 U.S. at 84-85. The ban on videotaping
does not prevent New Life from disseminating to the public any information gained
from attending the execution. As a "content-neutral time, place, and manner"
restriction on speech, the Media Policy does not violate the First Amendment.
Even if we were to agree with New Life (and the District Court) that the Media
Policy burdens a constitutional right, we would be inclined to agree with the District
Court's application of the Turner factors to evaluate the reasonableness of the policy.
The District Court found the restriction on videotaping reasonably related to
legitimate penological interests such as safety and security, and the court was
satisfied that the Turner factors–a valid rational connection, available alternative
avenues of exercising constitutional rights, an increased burden on prison resources
and prison safety, and, finally, the unavailability of a less-burdensome
alternative–were all met by the showing made by the defendants. Turner, 482 U.S.
at 89-90. Because we find no constitutional right was burdened by the restriction on
video cameras we need not review this portion of the District Court's opinion, but do
mention it for the sake of completeness. We observe that New Life's argument that
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the Turner standards for evaluating reasonableness should be used only when a
prisoner's rights have been implicated has been foreclosed by the Supreme Court:
"We do not think it sufficient to focus, as respondents urge, on the identity of the
individuals whose rights allegedly have been infringed . . . any attempt to forge
separate standards for cases implicating the rights of outsiders is out of step with [past
Supreme Court precedent]." Thornburgh v. Abbott, 490 U.S. 401, 410 n.9 (1989)
(internal citations omitted). Contrary to New Life's assertions, the status of a person
as a prisoner or non-prisoner does not determine whether the Turner test applies to
prison regulations that may affect both prisoners and non-prisoners.
We also agree with the District Court's determination that the Media Policy is
a valid exercise of authority granted by state law to the Director of the Department
of Corrections. Specifically, Missouri Revised Statutes § 217.025 gives the Director
broad authority to create rules and regulations to govern the operation of Missouri
correctional centers and to control and safeguard their inmates. Mo. Rev. Stat.
§ 217.025 (2000). We are satisfied that the Media Policy is a valid exercise by the
Director of this statutory authority.
Finally, we find no merit in New Life's claims that the District Court abused
its discretion by denying New Life's motion to strike the affidavits of defendants Gary
Kempker and George Lombardi under Federal Rules of Civil Procedure 26(a)(2).
New Life claims that the affidavits provided expert opinions and that the failure to
identify Kempker and Lombardi as experts require the affidavits to be struck.
Because the affidavits contain factual material and merely lay opinion based on the
defendants' personal knowledge gained from their work in the Department of
Corrections, the District Court did not abuse its discretion in ruling that Kempker and
Lombardi were not subject to the identification requirement of Rule 26(a)(2), and,
consequently, in denying the motion to strike.
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For the reasons stated, the judgment of the District Court is affirmed.
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