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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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