Column: Gene Policinski, Inside the First Amendment

The images would be the ultimate in “reality” programming: A TV broadcast or online streaming video of an actual execution.

Would you watch? Would you want news organizations — or anyone with a computer, for that matter — to broadcast or stream it on a live or delayed basis?

On July 22, Georgia prison officials complied with a request from Andrew Grant DeYoung’s attorneys for a video of Young’s death by lethal injection for killing three people in 1993.

There are no plans for the DeYoung tape to be aired anywhere — yet. The video, being held by a court, could be evidence in a future lawsuit over execution methods.

But the incident and predictions of more such requests by death-row inmates raises the possibility that such a video could be leaked and posted on the Web before authorities could react. And, days ago, a university professor and a former federal prosecutor co-authored a commentary in The New York Times Sunday Review that cited the DeYoung taping as they called for executions to be televised. The pair said it was the only way for the public to get firsthand information on whether or not the practice is “cruel and unusual punishment,” given that we now get only “vague contours” from news media or family observers.

According to a display at the Newseum in Washington, D.C. (see http://www.newseum.org/news/2008/01/the-daily-newss-front-page-photo-of-ruth-snyders-execution-new-york-daily-news.html), the only news photo of the exact moment of an execution was taken Jan. 12, 1927, against prison rules, by a photographer at the electrocution of convicted murderer Ruth Snyder. The front-page photo helped the New York Daily News sell 1 million extra copies – and caused a number of states to enact laws forbidding such photos.

The last public execution in the United States took place in 1936, in Owensboro, Ky. — reported as a sunrise hanging before a crowd of 20,000 and “hundreds of news reporters and photographers.” News organizations today, however, will be caught in ethical and First Amendment free-press crosscurrents in deciding whether to show an execution.

Virtually no news organization, as a matter of policy, prints, airs or posts grisly photos or video of the instant of death or dead bodies. Such policies, though, have been formulated in response to car chases, suicide attempts, storm damage, traffic accidents and the like. No such strictures exist on most websites.

State-sponsored executions have not been part of news-media ethical parsing, in that every state now has laws or regulations that forbid photos, video or audio. Courts have held there is no First Amendment right to such recordings or broadcasts. But what if such recordings become state policy?

Terrorist-produced videos of executions have been posted online. But state-authorized videos in the United States would be public records, and both sides of the death-penalty debate here may well clamor for public viewing “in the public interest.”

Opponents of the death penalty say public viewings would hold prison officials accountable for botched executions, and help counter claims that lethal injection is humane or painless. Death-penalty advocates argue that execution videos would help deter violent crime.

On the public side, there’s little envelope left to push when it comes to what viewers — at least enough to produce acceptable ratings — will accept.

Round-the-clock, highly opinionated reporting in the recent Casey Anthony trial has drawn fire as crass, overblown and exploitive, even from the judge in the case. But the 24-7 shout-fests clearly caught an audience.

Myriad “reality shows” focus on gritty confrontations between police and suspects or bail bondsmen and quarry. The TV series “To Catch a Predator” blended law enforcement’s hidden-camera techniques with the lurid appeal of potential sexual predators’ being brought to justice.

“Means, motive and opportunity” are what any prosecutor in a criminal case needs to get a conviction — and just may be what a producer of a TV crime program will use sometime to get airtime for the ultimate “reality show.”

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. Email: gpolicinski@fac.org.