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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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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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