7th Circuit split in prisoner media-ban issue

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The 7th Circuit Court of Appeals was split in its en banc decision today to uphold the Federal Bureau of Prisons' authority to deny face-to-face interviews between inmates and the media. The majority, which affirmed the grant of summary judgment in favor of the defendants, believed the rule was legitimate to protect security interests; the dissent worried the ruling violated prisoners' First Amendment rights.

In David Paul Hammer v. John D. Ashcroft, et al., No. 06-1750, David Paul Hammer filed suit against then-Attorney General John Ashcroft and other public officials who drafted a policy that banned inmates of the Special Confinement Unit in Terre Haute from speaking to the media in person. The ban was put into effect after public outrage about a CBS broadcast in 2000 of an interview with Timothy McVeigh, who was sentenced to death for killing 168 people by bombing the Murrah Federal Building in Oklahoma City. Prior to that ban in 2000, Hammer had spoken face-to-face with media.

Ashcroft announced the change in policy saying he wanted to restrict a mass murderer's access to the public as "an American who cares about our culture," and he was concerned about irresponsible glamorization of a culture of violence.

Last year, a 7th Circuit panel originally reversed the ruling by then-District Judge John Tinder, which was vacated by granting the rehearing en banc.

Judges Richard Posner, Michael Kanne, Terence Evans, Diane Sykes, and Chief Judge Frank Easterbrook, who wrote for the majority, believed the policy was constitutional based in Saxbe v. Washington Post Co., 417 U.S. 843 (1974), and Pell v. Procunier 417 U.S. 817 (1974). Those rulings establish the BOP could enforce a system-wide rule against personal or video interviews between prisoners and reporters. The rule at issue, THA 1480.05A, is reasonably related to legitimate security interests, wrote Chief Judge Easterbrook. Prisons don't want inmates to become famous and celebrities through the interviews, which could raise tensions within prison.

The majority also found the blanket ban of face-to-face media interviews of prisoners on death row is neutral, and it doesn't see why Ashcroft and others should have to testify as to what they were thinking when they instituted the rule. The majority also believed Hammer could communicate with the media in an uncensored format about prisoners and conditions through writing.

Judges Ilana Rover, William Bauer, and Diane Wood dissented, worrying the majority's holding goes too far and will allow the government to suppress speech they find offensive, which is not a legitimate penological interest, wrote Judge Rovner in her dissent in which Judge Bauer joined. Judge Wood wrote her own dissent but agreed with the points made by Judge Rovner.

There is a question of fact that was overlooked by the District Court: Is the jailhouse-celebrity concern a legitimate one or is it "simply a convenient way to justify a policy designed to control speech content of a particular subset of prisoners," questioned Judge Rovner.

"It is unclear why speaking in-person with a journalist would give an unknown death-row inmate more influence over other prisoners than would, for example, allowing Martha Stewart or George Ryan to give face-to-face interviews during their incarceration, which they would have been or are free to do under the Bureau's policies," she wrote.

The dissenting judges also wrote that Hammer was denied the opportunity to create a full record at the summary-judgment stage because the government moved for summary judgment before the close of discovery and objected to Hammer's requests for discovery.

Judges Joel Flaum, Ann Claire Williams, and Tinder didn't participate in the consideration or decision of the appeal.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.