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Mark Grossman

The First Amendment and Internet Broadcasting

31 May 2001

Have you heard the one about the company that wants to broadcast Timothy McVeigh's execution over the Internet? If it sounds to you like a perverse and surreal joke, the problem is that it isn't. If you want to know the name of the company, you're not going to find it here. Its obscene publicity stunt isn't going to get its name in print here. I'll just call it the "webcaster."

In its motion to the court, the webcaster said that, "The people of the United States, as citizens and as victims of the bombing, have a right pursuant to the First Amendment of the United States Constitution to oversee the implementation of justice against Mr. McVeigh, namely, to witness his execution." Wow--can you imagine that webcaster filed this lawsuit to protect our First Amendment rights?

Now, if this scenario hasn't yet struck you as truly surreal, let's add one more fact. Some of the more vocal advocates for the webcaster are those who are opposed to the death penalty. Their thing is that people will find the implementation of the death penalty so distasteful that they'll demand that the government abolish it.

This strikes me as perverse in the same way that anti-abortionists killing doctors and environmentalists acting like terrorists does. I suspect that most people who oppose the death penalty or are against abortion or consider themselves to be environmentalists cringe when they're associated in the same breath with those who are willing to go so over the line to advocate their positions.

Amendment Limits

Let's start by identifying my bias. I'm a huge advocate for the First Amendment. The thought of the government censoring the press, the Internet or a book publisher makes me cringe.

I'm prepared to allow Nazi animals to march in Times Square because of my First Amendment principles. I'm prepared to tolerate flag burning although I think it's deplorable conduct.

I don't think that it follows that in the name of the First Amendment we have to revert to executions being performed in a circus-like atmosphere. And if you don't think the presence of a camera can't change the atmosphere of an otherwise solemn place, I think that you only need to remember the OJ trial to recall how even a murder trial could become a circus.

Even the First Amendment has limits. It's a cliché that you can't yell ``fire'' in a crowded theater. We all know that it's illegal to incite a riot.

In 1890, the United States Supreme Court upheld a state's total ban on both media and public access to executions. The Court held that "[t]hese are regulations which the legislature, in its wisdom, and for the public good, could legally prescribe in respect to executions occurring after the passage of the act."

Courts have never construed the First Amendment as an absolute grant of authority for the press to go everywhere and report everything.

In a 1996 case, a United States Court of Appeal ruled that the First Amendment didn't prohibit a Pentagon policy allowing the families of soldiers killed abroad to prevent the press from attending the return of the bodies to American soil. In its opinion, the court said that "First Amendment rights to 'freedom of speech, [and] of the press' do not create any per se right of access to government property or activities simply because such access might lead to more thorough or better reporting."

In 1980, the Supreme Court upheld denying a press request to visit a jail for reporting on jail conditions. The Court noted that it had "never intimated a First Amendment guarantee of a right of access to all sources of information with government control." Further, it said that the "undoubted right to gather news--affords no basis for the claim that the First Amendment compels others--private persons or governments--to supply information."

We shouldn't allow the First Amendment to be used as a weapon by those who want to appeal to the lowest element of our society. I can't imagine that the webcaster's motives are the noble protection of our First Amendment. Who are they kidding? If for a second you believe that, please look in the mirror. I suspect that you have a neon sign flashing on you head blinking, "Gullible fool."

Hey, if we're going to webcast this thing, let's do it right. Let's get it on the big screen in Times Square. Let's have that image of hundreds of thousands of Americans chanting, "Kill him" beamed around the world. Now, that would be something to be behold.

The government's rules prohibiting the broadcasting of the execution don't prevent reporting of or commentary on the event. That would trounce on the First Amendment. We're not even dealing with a total ban of the press or public, which the Supreme Court has previously blessed.

When McVeigh dies, representatives of the press and the public, and victim's families will attend. The event will be widely reported, commented upon and will probably dominate the news for days.

The First Amendment doesn't require us to broadcast this ugly and horrific image. The First Amendment doesn't exist so that we're forced to give in to the most undignified and uncivilized elements in our society. At its most basic level, it exists to ensure unlimited political commentary, unfettered by government interference, that we'll have before, during and after this execution whether we broadcast it live to appease the lynch mob or not.

The First Amendment and Internet Broadcasting is republished from
Mark Grossman
Mark Grossman