Death Watch: Why America Was Not Allowed To Watch Timothy McVeigh Die

June 16, 2012

Timothy J. McVeigh was sentenced to death on August 14, 1997, for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, which left 168 people dead. Although United States Attorney General John Ashcroft explained that “all the citizens of the United States were victims of the crimes perpetrated by Mr. McVeigh,” all such victims were not allowed to watch McVeigh’s execution by lethal injection at the United States Penitentiary at Terre Haute (USPTH) on June 11, 2001.
In Entertainment Network, Inc. v. Lappin, Internet content provider Entertainment Network, Inc. (ENI) requested permission to record and simultaneously broadcast McVeigh’s execution via the Internet or, alternatively, to gain access to the live audiovisual transmission of the execution for the purpose of broadcasting that material. The Bureau of Prisons (BOP) declined ENI’s request on the grounds that 28 C.F.R. § 26.4(f) prohibited such recording. Section 26.4(f) states that, except as otherwise ordered by a court, “[n]o photographic or other visual or audio recording of . . . [an] execution shall be permitted.” ENI’s challenge was “to its face,” meaning that, if successful, the section 26.4(f) ban could no longer be enforced against any member of the press.
This note examines the reasons why the ENI court upheld the ban on the press’s ability to record executions. After explaining the court’s reasoning, it will discuss how, although the ruling was not surprising, the court erred in finding section 26.4(f) to be content neutral and gave unwarranted, uncritical weight to the government interest in upholding the ban. Given the terrorist events in New York City and Washington, D.C., on September 11, 2001, this note also examines the press’s rights of access in the event that suspected terrorist Osama bin Laden should be somehow captured, tried in an American court, and executed. It will finally present a number of compromises that would have been more appropriate on the facts of ENI.