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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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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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