McVeigh's pending execution, and Attorney General John Ashcroft's guidelines for its limited broadcast (only via closed-circuit signal to victims and survivors in Oklahoma City) have raised a plethora of questions entwining freedom of the press and the cold hard facts of capital punishment. None are readily answered.
Whose rights are we protecting when we bar the broadcast of an execution? And how do we justify hiding the execution itself even as we loudly proclaim its efficacy as a deterrent to crime? Would a free broadcast of McVeigh's death serve a positive purpose by blunting our fascination with death or would it just provoke further violence?
Two weeks ago, John Ashcroft announced a carefully designed viewing protocol for the execution: Given the scope of McVeigh's crime, 10 witnesses (rather than the usual eight) will join a few members of the press in watching McVeigh die. The execution will be shown live via closed-circuit television to a group of several hundred survivors and victims' family members gathered in Oklahoma City. The transmission and those who watch it will be carefully monitored (even cell phones will not be permitted) in an attempt to stave off entrepreneurs intent on hijacking the signal. Only those considered by the U.S. Justice Department to have a specific interest in McVeigh's death will be permitted to view the execution itself. We'll hear all about it on the news, of course, but the grisly final moments are reserved for just a few.
Because his crime is unique in American history, McVeigh is viewed as a special threat. But what kind of a threat does his death really represent? Would a national broadcast of an execution for a crime that was, ostensibly, targeted at the entire nation really present more problems than an execution shown to a select group of people?
Everyone seems to agree that the media has a First Amendment right to cover the trappings of the execution but no one seems prepared to argue the right to show the death itself. That's primarily because current case law doesn't explicitly cover executions. "The U.S. Supreme Court has always stopped short of guaranteeing a First Amendment right to general access to government information," says Robert O'Neil, a law professor and director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia. "It has declared such a right with regard to criminal trials, which are always open to the public. But it seems to me that to claim a general media right to access an entire execution is stretching anything that's currently on the books."
No one knows that better than David Marshlack, president of Entertainment Network, Inc. Marshlack wants to show the execution on EntertainmentNetwork.com at a cost of $1.95 per computer. (All proceeds would be donated to charity). On April 19, a federal judge ruled against Marshlack, saying the First Amendment does not extend to broadcasting executions. Marshlack plans to appeal the ruling.
And what might happen if the Supreme Court heard the case? Nobody knows, of course, but some legal experts note the Court's history does not bode well for Marshlack's case. "Generally the U.S. Supreme Court has stultified the development of case law in this area," says Leo Flynn, professor of politics and constitutional law at Pomona College. "The Court's not particularly amenable to the idea of extending the First Amendment to include a constitutional right to information."
If it did ever consider the case, the Court would probably ask if watching a prisoner die actually fills a demonstrable informational need. "Would this really help people understand the nature of executions, or is it essentially an exercise in voyeurism?" asks Flynn. Sure, some of us might secretly harbor a desire to watch McVeigh die, but does that make the execution itself newsworthy? Edward Pease, the head of the journalism department at Utah State University in Logan, thinks not. "It seems to me the news organizations could find new and better ways to use the expenditures they're already spending on the McVeigh story think of the moment-to-moment coverage and all those splash pages you'll see on the networks."
Like many Americans, including Ashcroft, Pease argues that McVeigh has already gained enough from his terrorist act. And now, Pease says, the television networks see it as their chance to gain even at the expense of the national peace of mind. "I can understand that maybe the families of the victims want to see that he is really dead. But for the rest of us, it seems to me that if the execution were reported quietly at the bottom of page 4, it would serve exactly the same purpose. America needs to put closure on this terrible event. But this is not the way to put closure on a tragedy. This is the way to sell ads."