Entertainment, Free Speech and Judicial Murder: Hegseth and Livestreaming Executions

On December 3, two traditions risk combining in foul if remarkable fashion. In the United States, an execution is set to take place with a ghoulish offering of livestreaming through the World Wide Web. This, at least, is the sprightly proposal from Pete Hegseth, the US Secretary of Defense (or War, depending on the mood) regarding the fate of Nidal Hasan. The former ex-US Army major and psychiatrist was sentenced to death by a military jury in 2013 for the premeditated murder of 13 people at Ford Hood on November 5, 2009. This will make it the first US military execution since 1961, though it needs final approval from President Donald Trump.

The announcement has produced jittery indignation in various quarters. “This is an unprecedented, barbaric decision that makes the killing of a man a point of sordid spectacle,” growled the Legal Defense Fund. “The government’s opportunistic use of a man’s brutal killing turns an already grotesque injustice into a national spectacle that degrades our country and degrades us all.” Former Secretary of State Hillary Clinton, spouse of a man who knew a thing or two about ordering the execution of inmates when Governor of Arkansas, thought the suggestion “barbaric” and “beneath our dignity as a country.” Adam Smith, the top-ranking Democrat on the House of Representatives armed services committee, considered the matter “disturbing”, “medieval”, and something to make “a mockery of our legal system”.

Capturing the killing process before camera is not new and far from being considered barbaric, a mockery, or degrading in a country that has previously enlivened links between cruelty, spectacle and legal debates on who is entitled to participate in it. The previous broadcasted execution in the US took place via means of a closed-circuit telecast in June 2001, when the Oklahoma City bomber Timothy McVeigh was put to death by lethal injection under the watchful eyes of 250 survivors or family members. At the time, the US Attorney General John Ashcroft thought the witness limit of eight victims or family members “inadequate” given McVeigh’s exploits of April 1995 that left 168 people dead. “It is a unique set of circumstances that confront us,” he reasoned. “The Department of Justice must make special provision to assist the needs of the survivors and victims’ families in accordance with our responsibilities to carry out justice.” That provision came in the form of an instantaneous and contemporaneous closed-circuit transmission without any temporary or permanent recording, using encryption technology.

The way the broadcast was to take place piqued the interest of Entertainment Network, Inc. which argued before the US District Court for the Southern District of Indiana that it had, as a member of the media stable, a constitutional right to broadcast the execution on the internet. “The government is sponsoring the killing of a human being who was responsible for this horrendous act and we believe the people have an absolute right to witness the action,” declared an opportunistic David Marshlack, chief executive of ENI in an interview with Business Wire. At the trial, an affidavit from one of ENI’s attorneys, the lusciously named Stephen L. Trueblood, recalled statements made by Ashcroft that “all the citizens of the United States were victims of the crimes perpetrated” by McVeigh.

To this view could also be added concurrence from the bomber himself, who wished to see his own extinguishment broadcast liberally and widely. “Because the closed-circuit telecast of my execution raises these fundamental equal access concerns,” McVeigh argued in a letter to The Sunday Oklahoman, “and because I am otherwise not opposed to such a telecast, a reasonable solution seems obvious: hold a true public execution – allow a public broadcast.”

Judge John Tinder, in finding against ENI, held that, “Whatever First Amendment protection exists for viewing executions, it is not violated by [the Bureau of Prisons’] explicit regulation against recording or broadcasting them to the public.” In the circumstances, it was “appropriate, and indeed virtually imperative, to defer to the BOP. Whatever First Amendment protection exists for viewing executions, it is not violated by the BOP’s explicit regulation against recording or broadcasting them to the public.” The prohibition on the recording and broadcasting of an execution did not abridge “the opportunities for communication of thought.” In of itself a wonderful thought.

Previous court cases on the subject of limiting witnesses to an execution have considered the soundness and scope of regulations made by prison authorities on how the gory process is to be viewed. In the industry of penologically inflicted death, guidelines, protocols and an absurdly false sense of decorum count. One judicial example provided Judge Tinder with particularly relevant guidance. The Ninth Court of Appeals in California First Amendment v Calderon (1998), for instance, considered a First Amendment challenge to a prison regulation at St Quentin limiting witness observation of an execution. With macabre detail on a macabre application, the court described the provision, Procedure 770, as permitting witnesses to view the process of lethal injection only after the person to be executed was strapped to the gurney and an IV saline solution had begun running. Witnesses would be prevented from hearing the order from the warden to commence the execution or observe the condemned on the gurney and the insertion of the IV. The beastly foreplay, in short, could not be viewed.

The judges, in deeming the provision valid, cheerily noted that, “This procedure does not cut off all access to information regarding executions.” The procedure permitted “some access and observation” while minimising “the exposure of the members of the execution team to the media or other witnesses, out of concern for staff safety and institutional security.” The judges were also insistent that they were “not holding that the public and the press do not have First Amendment rights to view executions. Rather, our holding is limited to the facts of the case.”

In the circumstances, the court found that the procedure was not “an exaggerated response” and the views of prison officials would stand. Even executions involve health and safety considerations – for the staff carrying them out. As for Hegseth, he might argue that, in permitting global access to the terminal demise of a person before a hail of bullets, he is at least advancing the rights so coveted by those willing to link the issue of free speech and entertainment with judicial murder.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University. Email: [email protected]