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The U.S. Court of Appeals for the Seventh Circuit has affirmed a lower court’s denial of a preliminary injunction to allow members of the press to witness state executions.
In the opinion issued Friday, written by Seventh Circuit Judge Michael Scudder Jr., the court denied the appellants’ two claims that Indiana’s policy on executions violates their qualified First Amendment right of access to certain government proceedings and that the policy violates the Press Clause of the First Amendment by unfavorably singling out members of the press.
Judge Doris Pryor affirmed the lower court’s decision while Judge Candace Jackson-Akiwumi dissented.
Attorneys for both parties did not immediately respond to requests for comment.
In May 2025, several news entities, including the Indiana Capital Chronicle, The Associated Press, Circle City Broadcasting, Gannett and Tegna, filed a lawsuit in the U.S. District Court for the Southern District of Indiana challenging the state’s prohibition against press witnesses for executions in the state. Indiana is one of two states with the death penalty that prohibits media witnesses, the Indiana Capital Chronicle reported.
The lawsuit was filed a few weeks prior to the execution of inmate Benjamin Ritchie against the superintendent of the Indiana State Prison and the commissioner of the Indiana Department of Correction in their official capacities.
Indiana law limits attendance at executions to a certain number of friends and family of both the inmate and the victim in addition to a spiritual adviser, the warden, the warden’s designated assistant, the prison physician, a second physician and a prison chaplain. Members of the media can attend executions only if they’re invited by the inmate who’s set to be executed.
After filing the lawsuit, the plaintiffs moved for a preliminary injunction, asking the district court to enjoin enforcement of Indiana Code Section 35-38-6-6(a), which specifies who can attend state executions, and order that they may attend any state executions before judgment is entered in the case.
The Southern District court denied the motion for injunction, determining that the plaintiffs failed to show a likelihood of success on the merits for either of their two claims.
The plaintiffs appealed to the Seventh Circuit Court on the same claims.
As to the plaintiffs’ claim that Indiana’s policy violates their First Amendment right of access to certain government proceedings, the circuit court determined that the U.S. Supreme Court’s framework to determine access to certain governmental proceedings does not apply to the plaintiffs’ argument and even if it did, the plaintiffs do not satisfy the framework’s standards.
The Supreme Court recognizes a limited right of access to certain government proceedings using a framework that considers whether 1) the government proceeding has historically been open to the press and general public and 2) public access plays a positive role in the functioning of that proceeding.
The circuit court determined the Supreme Court’s framework does not apply to executions because the high court has only used it to assess whether the public had a right of access to traditional aspects of criminal proceedings. The Seventh Circuit has only ever applied the framework to “court proceedings” and related “documents,” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1069 (7th Cir. 2018).
Because an execution occurs after a judge or jury has determined guilt, it is not considered a court proceeding or related document.
If the framework did apply, the circuit court stated that historically limited public access to executions did not and continues not to render them “open to the press and general public,” Press-Enterprise II, 478 U.S. at 8. Additionally, allowing uninvited strangers to watch an inmate die does not play a significantly positive role in state executions and instead “risks offending the dignity” of an inmate’s final moments, Scudder wrote.
On the plaintiffs’ second claim that Indiana’s laws on executions violates the First Amendment’s Press Clause, the circuit court determined that the First Amendment does not give the press more access than the general public.
“The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972).
In Judge Jackson-Akiwumi’s dissent, she stated that the First Amendment protects an informed public scrutiny of historically open government activities, and that “such severe and irreversible punishment on behalf of “the people” must be observable to comply with the Constitution,” she said.
Further, the Eighth Amendment of the U.S. Constitution guarantees an inmate the right to avoid cruel and unusual punishment.
“These independent protections meet in the execution chamber. There, the government’s authority is at its peak and so is its accountability to its citizens. Transparency and checks on government power are essential in this context,” she wrote.
If the public cannot oversee what it cannot observe, then they cannot be sure the executions adhere to the inmate’s Eighth Amendment rights, she said.
The case is Associated Press, et al v. Ron Neal, et al, No. 25-2025.
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