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Court: media ban does not pass test

Jennifer Nelson
January 1, 2008
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The 7th Circuit Court of Appeals reversed a District Court grant of summary judgment in favor of the defendants, ruling there were genuine issues of fact as to why they denied death row inmates from giving face-to-face interviews with the media.

In David Paul Hammer v. John D. Ashcroft, et al., No. 06-1750, Hammer sued Bureau of Prison officials, including then-Attorney General of the U.S., John Ashcroft, and former wardens of the federal prison in Terre Haute, Harley Lappin and Keith Olson. Hammer, a federal prisoner on death row at the time, claimed his First Amendment and equal protection rights were violated when the prison enforced a policy preventing death row inmates from giving face-to-face interviews with the media and from talking to the media about other inmates.

The defendants moved for summary judgment, arguing the new policy was for the protection of the inmates and security reasons. The District Court granted summary judgment in favor of the defendants.

Hammer was one of the first death row inmates housed at the Special Confinement Unit (SCU) at the federal prison in Terre Haute in 1999. That year, Hammer gave three face-to-face interviews with the media with no issues. In late 2000, Lappin ordered Hammer not to speak about other inmates during media interviews. Hammer was disciplined shortly thereafter for providing information about another inmate but not for giving the interview.

After an interview with SCU inmate Timothy McVeigh aired on national television in 2000, a U.S. senator wrote an angry letter criticizing the Bureau of Prison officials for allowing the McVeigh interview. In April 2001, Ashcroft announced in a press conference that all SCU inmates would not be allowed to have in-person interviews with the media at all and that they may speak only to the media by telephone during their daily 15-minute allotment of phone time. The media policy signed by Lapin at the Terre Haute prison stated these rules applied only to SCU inmates sentenced to death.

The 7th Circuit examined Hammer's appeal by applying a test found in Turner v. Safely, 482 U.S. 78, 84 (1987) - there must be a legitimate governmental interest in justifying the ban; the impact of accommodating the interview on inmates, guards, and other resources; there must be alternative means of exercising the right; and whether there are obvious, easy alternatives to the restriction.

Hammer submitted evidence to show the ban was not a result of prison security, as the officials suggested, but because of outrage over McVeigh's interview. Ashcroft explained his distaste for the content of the interviews given by death row inmates as the reason why the new policy was instituted. Other evidence also supports that there are not alternative means for Hammer to give an interview in person. Lappin stated the ban was to prevent the broadcast of the interview, but does not explain why interviews that are not recorded are banned. Because there are questions of material fact as to why the ban was instituted and whether there are any other outlets for Hammer to access the media, summary judgment in favor of the defendants should not have been granted, wrote Judge Ilana Rovner.

Because there are also issues of material fact on Hammer's equal protection claim, summary judgment should not have been granted on that claim.

The 7th Circuit also addressed Hammer's claims that the District Court erroneously denied his three motions to recruit counsel and his Rule 56(f) motion for continuance. The District Court did not meaningfully consider the complexity of this case and erred in not granting his motion for counsel. The court also abused its discretion in denying his Rule 56(f) motion for a continuance because he did not have counsel to help him specify which documents he needed during the discovery process.

The case is remanded for further proceedings.
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