ILNews

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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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