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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.