AnnotatedOpinions.com

In March 2000, Oklahoma City bomber Timothy McVeigh was interviewed in a federal prison for a segment of CBS’s “60 Minutes.”  . . . A lot of people didn’t like what he had to say. U.S. Attorney General John Ashcroft was one of them. Calling the segment “an irresponsible glamorization of a culture of violence,” he ordered a blanket ban on interviews with federal death row inmates. . .   

That rule is being challenged by another condemned prisoner who was housed near McVeigh in the Terre Haute, Ind., federal prison. David Paul Hammer was serving a 1,200-year sentence for kidnapping, murder, escape and assorted other crimes . . .  

Hammer’s lawsuit challenging the ban on interviews was rejected by a federal court and by the 7th U.S. Court of Appeals. His appeal to the U.S. Supreme Court is being supported by the Reporters Committee for Freedom of the Press and 23 news organizations, including Tribune Co., which owns the Chicago Tribune.  

The reporters’ group argues that prison interviews provide important checks on the system, shining light on how inmates are treated and how tax dollars are spent. . .  

The ban on interviews fails two tests established in earlier cases. First, the government can’t restrict an inmate’s free speech rights unless there’s an alternate avenue for uncensored communication. Second, any such rule must be backed by a legitimate criminal justice objective, such as the need to protect other inmates or prison employees. . .   

[AO: Based on the two tests established in early U.S. Supreme Court cases, it appears that, as described by the Chicago Tribune’s Editorial Board, the rule will be upheld (ruled valid) if the government can show that even if it restricts an inmate’s free speech rights and the inmate has no alternate avenue for uncensored communication, the government has a legitimate criminal justice objective. Let’s assume the government has no legitimate criminal justice objective for the blanket prohibition on interviews with federal death row inmates for our discussion here.  

The Tribune states that “the government can't restrict an inmate's free speech rights unless there's an alternate avenue for uncensored communication.” But what qualifies as an alternative avenue for uncensored communication? Relatedly, what are the purposes of these communications?   

The Tribune mentions inmate treatment and use of tax dollars. But here’s the rub. An inmate’s chief advocate for fair treatment in prison, the individual an inmate should probably first contact regarding the issues the Tribune highlights is the inmate’s lawyer. In other words, federal death row inmates have an alternate avenue for communication as required by the first part of the two element test that the Tribune describes.   

Inmates who would rather not communicate through their lawyer can just as well communicate through any other person who comes to visit. That is because death row inmates, generally, have visitation rights. The only prohibition seems to be that those visitors can’t be reporters carrying interviewing equipment. Indeed, what the rule does is not prohibit speech as much as it prohibits speech that potentially “glamorize[e] [] a culture of violence.”]