Veil of Secrecy: Public Executions, Limitations on Reporting Capital Punishment, and the Content-Based Nature of Private Execution Laws

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I. INTRODUCTION

Few issues in America spark more robust debate and disagreement than capital punishment. The theoretical foundations of the penal system in this country (whether the role of the state towards criminals should be predominantly one of deterrence, rehabilitation, or retribution) stand at the forefront of the debate. (1) The finality of the penalty provides the most illustrative and arguably the most tragic examples of the insufficiencies of the American criminal process. (2) The death penalty, as "the ultimate act of state," (3) provides a forum for very refined moral arguments centering on the role of the state over those whom it governs. This list is certainly not meant to be exhaustive, but merely indicative of the several issues and arguments that often follow debates on capital punishment through the legislatures, courts, and public forums of this country. (4)

One issue that is often overlooked in the capital punishment debate is the policy, adopted in some form by every criminal jurisdiction with the death penalty, to shield the public from the specifics of the application, administration, and resolution of the death sentence. Many Americans place the fundamental theoretical concepts of the First Amendment at the very cornerstone of the American democratic system. The First Amendment secures "the paramount public interest in a free flow of information to the people concerning public officials." (5) It "assures the maintenance of our political system and an open society." (6) It is in stark contrast to these principles that private execution laws in this country prohibit the public from viewing, and in some cases even prohibit the press from reporting, on the administration of capital punishment.

This Note provides a brief historical and analytical account of capital punishment in this country. This discussion will highlight the legislation, administrative policy, and penal roles that have historically restricted access to the execution chamber for the express purpose of preventing the dissemination of information regarding capital punishment to the American voting public. Ultimately, this Note will argue that this historical backdrop forces courts analyzing these laws to characterize these regulations as content-based distinctions on free speech, rather than to grant the broad deference these regulations are typically given in the courts' right-of-access jurisprudence.

Part II of this Note will provide a brief background of the methods of capital punishment at the time of the country's founding through the early parts of the twentieth century. It will highlight trends in attitudes toward capital punishment and discuss major attempts to humanize or to abolish capital punishment. Part III will address the emergence of private execution laws and argue that these laws arose in direct response to anti-death penalty movements throughout the nineteenth century. Part IV will analyze the Supreme Court's freedom of the press jurisprudence, specifically focusing on the "right of access" to government proceedings. This is the context upon which challenges to private execution laws have historically been brought. Part V will address the most recent manifestation of this movement: attempts to broadcast executions to the general public. Part VI will argue that these challenges have ultimately failed because of their characterization as "access" cases. The historical tradition of shielding facts about executions from the public necessitates that the courts evaluate these cases under the Supreme Court's holdings involving content-based restrictions on speech.

II. THE HISTORICAL TRADITION OF CAPITAL PUNISHMENT IN THE UNITED STATES

A. The Colonial Era

During the early Colonial period, all thirteen American colonies imposed capital punishment for at least some crimes. (7) The Colonial punishment scheme was modeled heavily after the system in England; however, the colonies imposed capital sentences for fewer crimes, (8) and the officials administering the trials were generally more hesitant to impose the death sentence. …