constitutionality of 28 CFR 26.4(f) and Defendants corresponding policy and practice of

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2 constitutionality of 28 CFR 26.4(f) and Defendants corresponding policy and practice of prohibiting photographic, audio and visual recording devices at federal executions at the United States Penitentiary at Terre Haute CFR 26.4(f) and Defendants corresponding policy impedes effective reporting of executions, which are events of major public and political significance traditionally open to the public ENI wishes to exercise its First Amendment right, as a member of the public and press, to broadcast via the Internet a live audiovisual transmission of the execution of Timothy McVeigh, which the government has scheduled for May 16, The First Amendment to the United States Constitution prohibits the government from enforcing 28 CFR 26.4(f), or from otherwise restricting the media s right to broadcast audiovisual images of Mr. McVeigh s execution Throughout most of our country s history, executions were public events held in the town square, the courthouse yard, and other traditionally public fora. As such, they were accessible to the public at large, and drew significant crowds on some occasions, tens of thousands of spectators. Beginning in the mid nineteenth century, however, executions increasingly took place behind prison walls, and since 1936 no execution has taken place in the public eye In the federal system, which governs this case, executions are made public pursuant to 28 CFR 26.4(c), which provides for numerous witnesses to executions including eight citizens and ten representatives of the press. Obviously, for safety and security reasons, the Bureau cannot permit every member of the public to attend executions. However, 28 CFR -2-

3 26.4(c) requires the Bureau to allow public access through citizen and media representatives Timothy McVeigh, who was sentenced to death for his role in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, is currently scheduled to be executed by lethal injection at the United States Penitentiary at Terre Haute, Indiana, on May 16, If his execution takes place as scheduled, McVeigh will become the first civilian executed by the federal government since McVeigh s execution, like his trial, is a matter of significant public interest. Capital punishment in general, and the federal death penalty in particular, are issues of national and international importance in politics, law, and ethics In connection with the shift from public to private executions, most states and the federal government have enacted statutes or regulations that permit, and in some cases require, media recognized, either implicitly or explicitly, that the media right to attend and report on executions. In its role as the eyes and ears of the public, the media s right to report full and accurate information concerning capital punishment has been increasingly recognized by both commentators and courts. Like the right to access other criminal proceedings, the right to access executions has its basis in the First Amendment, and pursuant to the standard generally applicable to criminal justice proceedings this right can only be restricted when the restrictions in question are narrowly tailored to furtherance of a compelling government interest. The government cannot demonstrate that the prohibition on broadcast of executions meets this heavy burden Notwithstanding that the role of the media at an execution is to report on that execution to the public, and notwithstanding that text-only reportage has not been the standard in journalism for more than a century, Defendants policy prohibits all photographic, visual and -3-

4 audio recording of executions. Contrary to law and historical practice, 28 CFR 26.4(f), and Defendants policies and practices, impede democratic discussion of the death penalty and its implementation, both of which are public policy issues of substantial importance for the voters and their elected representatives. 28 CFR 26.4(f), and Defendants policies and practices, violate the First Amendment to the United States Constitution. Defendants should be enjoined from enforcing 28 CFR 26.4(f), and from prohibiting audiovisual capturing and broadcast of executions, before future executions, including the execution of Timothy McVeigh, which is presently scheduled to occur on May 16, II. PARTIES 2.1. Plaintiff Entertainment Network, Inc. ( ENI ) is, and at all time relevant hereto was, a corporation organized and existing according to the laws of the State of Florida, with a principal place of business in Tampa, Florida. ENI provides news, entertainment, and information via the Internet World Wide Web Defendant Harley Lappin is the Warden of the United States Penitentiary at Terre Haute, Indiana ( USP Terre Haute ). As the warden, defendant Lappin is generally responsible for the operation of USP Terre Haute. Additionally, pursuant to 28 C.F.R. 26.4, the Warden is responsible for selecting the persons who will be allowed to witness executions Defendant Kathleen Hawk Sawyer is the Director of the United States Federal Bureau of Prisons (the Bureau ). Pursuant to 18 U.S.C. 4042, the Bureau oversees the management and regulation of all Federal penal and correctional institutions, including USP Terre Haute. Defendant Lappin reports to Defendant Sawyer. -4-

5 2.4. Defendant Attorney General John Ashcroft is the Attorney General of the United States. Mr. Ashcroft oversees the United States Department of Justice. Pursuant to 18 U.S.C. 4042, the Bureau operates under the direction of the Attorney General. Defendant Sawyer reports to Defendant Ashcroft. III. JURISDICTION AND VENUE 3.1. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court's jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. 1331, 1361 and The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C et seq The Court has the authority to award costs and attorneys' fees pursuant to 28 U.S.C Venue in this action is appropriate in the Southern District of Indiana pursuant to 28 U.S.C. 1391(e). IV. FACTS 4.1. The bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on the morning of April 19, 1995 was the deadliest act of terrorism ever committed on American soil. The explosion blew the front off the nine-story Murrah building, burying victims under collapsed ceilings and concrete and ultimately resulting in 168 deaths and over 500 injuries. Many of the deceased were federal government employees; 19 were children who attended day care in the building. -5-

6 4.2. Two days after the blast, Timothy McVeigh was arrested by local authorities, turned over to the FBI and charged with the bombing. A federal judge in Oklahoma City ordered the trial moved to a Denver federal court, and following 22 full days of testimony and an estimated $10 million spent on McVeigh s publicly-funded defense, a jury found McVeigh guilty of conspiracy and murder in connection with the bombing, and sentenced him to death The United States federal death penalty was first used on June 25, 1790, when Thomas Bird was hanged for murder in Maine. Since then, 336 men and 4 women have been executed under federal auspices In 1972, the United States Supreme Court ruled that all state death penalty statues were unconstitutional because they allowed for arbitrary and capricious application. The federal statute suffered from the same infirmities as the state statutes and no death sentence employing the older federal statutes has been upheld In 1988, a new federal death penalty statute was enacted for murder in the course of a drug-kingpin conspiracy. This statute was modeled on statutes that had been approved by the Supreme Court after its 1972 ruling. Between its enactment and the 1994 expansion of the federal death penalty described below, 6 people were sentenced to death for violating this law, though noone has been executed. One of the defendants, John McCullah, had his death sentence overturned and was later re-sentenced to life in prison In 1994, as part of an omnibus crime bill, the federal death penalty was expanded to some 60 different offenses. Among the federal crimes for which people in any state or territory of the U.S. can receive a death sentence are murder of certain government officials, kidnapping resulting in death, murder for hire, fatal drive-by shootings, sexual abuse crimes resulting in -6-

7 death, car jacking resulting in death, and certain crimes not resulting in death, including the running of a large-scale drug enterprise No method of execution was provided in the 1988 federal death penalty law. President Bush issued regulations in 1993 authorizing lethal injection as the method of execution. Under the 1994 law, the manner of execution is that employed by the state in which the federal sentence is handed down. If that state does not allow the death penalty, the judge may choose another state for the carrying out of the execution The Bureau has converted a portion of USP Terre Haute into a new facility for condemned federal prisoners No federal executions have been carried out since Capital punishment is a major issue in national and international politics. The execution last year in Texas of Miguel Flores drew calls for clemency from the governments of Mexico, Spain, Argentina, and Poland, as well as from the European Union. The Inter-American Commission on Human Rights called for the execution to be halted, and the United States Department of State wrote to the Texas parole board urging "careful consideration" of Flores' request for clemency There is great public interest about the death penalty and its imposition, which increases when a potential execution becomes imminent The public, or selected members of the public, have always been permitted to witness executions, whether carried out by state governments or the federal government Executions were historically conducted in public places. When executions began to be conducted inside prison walls, many states enacted legislation requiring the presence of -7-

8 citizen and/or media witnesses The Bureau of Prisons requires the presence of members of the public, and media witnesses therefrom, at federal executions. Pursuant to 28 C.F.R. 26.4(c)(3), defendant Lappin is required to invite not more than... ten representatives of the press to executions. Under Bureau procedure, the media witnesses are selected from media who apply to be present Pursuant to 28 C.F.R (f), No photographic or other visual or audio recording of the execution shall be permitted, except to the extent that a court orders otherwise Since the last federal execution in 1963, the world has witnessed the advent of the color thirty-minute network news program (1963); the first communications satellite in geosynchronous orbit (1963); the first fax machine (1966); photographs sent from the surface of the moon (1969); the invention of the microprocessor (1970); the debut of the microcomputer (1973); cellular phones (1983); camcorders (1984); and the (privatized) Internet (1994) In 1963 and earlier executions, news personnel at federal executions were not prevented from taking notes or drawing sketches. The technology for unobtrusive, quiet videotaping did not exist. Today, in contrast, technology has advanced to such an extent that the use of cameras and recording devices is not inherently disruptive in any proceeding. In fact, the Bureau itself has announced that it is considering the possibility of a closed-circuit narrowcast of the execution to Oklahoma City in order to allow victims of the bombing to witness McVeigh s execution There is no justification for the policy of completely denying broadcast media the tools of their trade, cameras and audio and video recording devices, in witnessing an execution. This policy impedes effective reporting of executions, and encourages inaccurate reporting of -8-

9 them. Defendants know or should have known that in adopting the policy that it would impair accurate media coverage of executions, and, on information and belief, Defendant s intent in implementing the policy is to impair accurate media coverage of executions About two-thirds of the American public receives its information about news events primarily from sources other than newspapers. Absent full coverage by broadcast media (including webcast), the public will receive incomplete information about executions. A video camera is a neutral witness, whose reporting does not depend on the interpretation or political bias of the reporters, or on the faulty and possibly biased memories of those particular reporters chosen by Defendants to witness the execution The Bureau recognizes the desirability of establishing a policy that affords the public information about its operations via the news media. 28 C.F.R On information and belief, Defendants routinely permit media representatives to bring photographic, video and audio recording devices to federal penitentiaries, including at USP Terre Haute, for news coverage other than executions On March 20, 2001, ENI requested permission from Defendants to serve as a media pool witness to the execution of Timothy McVeigh, currently scheduled for May 16, In addition to attending the execution, ENI requested permission to to bring a small audiovisual capturing device to the witness chamber of Mr. McVeigh s execution, and to record and simultaneously broadcast Mr. McVeigh s execution via the Internet to the public. In the alternative, ENI requested that the Bureau provide ENI with access to a live audiovisual transmission of the execution, and permit ENI to broadcast the same pursuant to 28 CFR (d) (i.e., material created by press pool is made available to all media without right of first -9-

10 publication or broadcast). A true and correct copy of ENI s request is attached as Exhibit A and incorporated by herein by this reference On March 28, 2001, Defendants denied ENI s request. A true and correct copy of Defendants letter denying ENI s request is attached as Exhibit B and incorporated herein by this reference In their letter denying ENI s request, Defendants assert that the government interests furthered by the prohibition on photographic, audio and visual recording of executions are not sensationalizing the event, maintaining prison security and good order, and respecting the privacy interests of the condemned individual None of the interests asserted by the government justifies the government s complete prohibition on photographic, audio and visual recording devices Whether an event is portrayed in a dignified or a sensationalistic manner is determined by the journalistic style of the particular reporter covering the event and by the context in which his or her report appears, not by an unbiased, unembellished depiction of the event as it occurs. A video camera simply records what is before it, without judgment. The First Amendment prohibits the government from, among other things, dictating the tone used by the media in reporting on government actions. The government does not, and cannot under the Constitution, have an interest in not sensationalizing the event The government s interest in maintaining prison security and good order is legitimate. However, in the context of ENI s request, the government s prohibition on photographic, audio and visual recording devices is fatally overbroad. Security and order are not threatened to any significant degree by the presence in the witness chamber of the equipment -10-

11 necessary to record an execution; advances in technology enable the use of recording devices that work with available light and are extremely unobtrusive. To the extent, if any, that security and good order are threatened by the content itself if, for instance, the government fears that other inmates viewing the execution might be prone to riot, or to retaliate against prison staff involved in the execution such concerns can be easily addressed in this instance by preventing inmates from accessing the Internet during the execution, or by other simple technical means Mr. McVeigh has requested that his execution be televised, and the government s asserted interest in protecting the privacy interests of the condemned individual is not applicable to the current circumstances. Whether the public s interest in viewing executions outweighs the privacy rights of the inmate need not be decided by this Court CFR 26.4(f) and Defendants policy and practice of prohibiting photographic, audio and visual recording devices, violates ENI s right to meaningfully report on executions. Pictures and sounds are expressive communication, and the contemporary standard for news reporting includes photographic and/or audiovisual coverage. The interests that Defendants assert in support of 28 CFR 26.4(f) and their corresponding practice do not, under the circumstances, justify the total ban on recording devices. V. CLAIMS FOR RELIEF CFR 26.4(f) provides that No photographic or other visual or audio recording of [any federal] execution shall be permitted CFR 26.4(f) is unconstitutional because it violates the First Amendment rights of ENI, the public, and the press. -11-

12 5.3. The actions and policies of Defendants as alleged above violate ENI s rights under the First Amendment by denying ENI effective and sufficient access so that it can witness and report on executions. Such actions and policies prevent the public from receiving complete and accurate information about executions On information and belief, defendants have intended by their policies and practices to restrict and control access to and public discussion of execution procedures There is an actual controversy between ENI and Defendants with regard to ENI s claims, thereby rendering appropriate a declaratory judgment pursuant to 28 U.S.C ENI has no adequate remedy at law to redress the deprivation of its constitutional rights as alleged above, and this action for declaratory and injunctive relief is the only means of protecting such rights ENI will suffer irreparable injury unless the Court provides appropriate redress. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff ENTERTAINMENT NETWORK, INC. prays for the following relief: 1. Declaratory Judgment. That, pursuant to 28 U.S.C. 2201, the Court declare that 28 CFR 26.4(f), and Defendants corresponding policies and practices as alleged above, violate the First Amendment to the United States Constitution; 2. General Injunctive Relief. That, this Court grant temporary, preliminary, and permanent injunctive relief enjoining Defendants from enforcing 28 CFR 26.4(f), and from otherwise prohibiting photographic, visual or audio recording of federal executions; -12-

13 3. Specific Injunctive Relief. That, this Court grant temporary, preliminary, and permanent injunctive relief enjoining Defendants from prohibiting ENI from broadcasting via the Internet World Wide Web the execution of Timothy McVeigh, which currently scheduled for May 16, 2001; 4. Attorneys Fees and Costs. That, the Court award ENI its costs of suit together with reasonable attorneys fees pursuant to 28 U.S.C and 42 U.S.C. 1983; and -13-

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15 EXHIBIT A

16 1001 Fourth Avenue Plaza Suite 3200 Seattle, Washington phone fax SENT VIA FEDEX AND BY FAX March 20, 2001 Harley Lappin Warden United States Penitentiary Terre Haute Highway 63 South Terre Haute, Indiana Christopher Erlewine, Esq. General Counsel Federal Bureau of Prisons 320 First St., NW. Washington, D.C Kathleen Hawk Sawyer, M.A., Ed.D. Director Federal Bureau of Prisons 320 First St., NW. Washington, D.C John Ashcroft United States Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC Re: Request Pursuant to First Amendment for Permission to Transmit Via the Internet Live Audiovisual Depiction of Timothy McVeigh Execution Dear Madam and Sirs: This firm represents Entertainment Network Inc. ( ENI ), which provides news, entertainment, and information via the Internet world wide web. This letter constitutes ENI s formal application to the United States Federal Bureau of Prisons (the Bureau ) to serve as a media pool witness to the execution of Timothy McVeigh, currently scheduled for May 16, In addition to attending the execution, ENI hereby requests permission to bring a small audiovisual capturing device to the witness chamber, and to record and simultaneously broadcast Mr. McVeigh s execution via the Internet to the public. In the alternative, ENI requests that the Bureau provide ENI with access to a live audiovisual transmission of the execution, and permit ENI to broadcast the same pursuant to 28 CFR (d) (i.e., material created by press pool is made available to all media without right of first publication or broadcast). With certain narrow exceptions, the First Amendment to the United States Constitution guarantees the public and the press the right to access matters of public concern conducted by the government. The execution of Mr. McVeigh is a matter of great public importance and significance.

17 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 2 of 7 Executions in general are matters of public import and controversy. Simply put, in the history of United States justice, there has never been a more appropriate matter for public broadcast than the impending execution of Mr. McVeigh. The public has a constitutional right to be present at the execution and the only method of delivering that right to the citizens is via audiovisual transmission. BACKGROUND OF MCVEIGH CASE The bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on the morning of April 19, 1995 was the deadliest act of terrorism ever committed on American soil. The explosion blew the front off the nine-story Murrah building, burying victims under collapsed ceilings and concrete and ultimately resulting in 168 deaths and over 500 injuries. Many of the deceased were federal government employees; 19 were children who attended day care in the building. Two days after the blast, Timothy McVeigh was arrested by local authorities, turned over to the FBI and charged with the bombing. A federal judge in Oklahoma City ordered the trial moved to a Denver federal court, and following 22 full days of testimony and an estimated $10 million spent on McVeigh s publicly-funded defense, a jury found McVeigh guilty of conspiracy and murder in connection with the bombing, and sentenced him to death. At his sentencing hearing, McVeigh quoted from former Supreme Court Justice Louis Brandeis s s dissenting opinion in Olmstead v. United States, 277 U.S. 438, 485 (1928): Our government is the potent, the omnipresent teacher. For good or for ill it teaches the whole people by its example. THE PUBLIC HAS A FIRST AMENDMENT RIGHT TO ACCESS THE EXECUTION The public has the right to monitor the government as it exercises certain of its powers so as to protect the free discussion of governmental affairs. Mills v. Alabama, 384 U.S. 214, 218 (1966). The First Amendment prohibit[s] government from limiting the stock of information from which members of the public may draw. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (citations omitted). In particular, under our Constitution, the government s powers of criminal prosecution and punishment powers historically susceptible to usurpation by tyrants and demagogues may not be conducted under a cloak of secrecy. Id.; see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (public right to access testimony of a juvenile victim in a sex crime trial); Press-Enterprise Co. v. Superior Court of California [Press I], 464 U.S. at (public right to voir dire transcripts in criminal proceedings); and Press- Enterprise Co. v. Superior Court of California [Press II], 478 U.S. 1 (1986) (public right

18 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 3 of 7 to access criminal preliminary hearings). Violent crimes often provoke public concern, even outrage and hostility, which in turn generates a community urge to retaliate and desire to have justice done. Press I, 464 U.S. at When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest. Id at 509. Public executions in general are one of the most important and controversial public issues of the day which should be accompanied in a democratic society by the widest possible public knowledge and information. Mr. McVeigh s execution, specifically, is a matter of unparalleled national and international interest. Mr. McVeigh bombed a building which housed officers of the United States, and he caused death to children, women, and men who depended upon this country to keep them safe, most of whom were responsible themselves for administering certain government functions. The people have a right to oversee the implementation of justice against Mr. McVeigh, namely, to witness his execution. See Cable News Network, Inc. v. American Broadcasting Cos., 518 F. Supp. 1238, 1245 (N.D. Ga. 1981) ( [T]he importance of conveying the fullest information possible increases as the importance of the particular news event or news setting increases ). Even if this matter were not so weighted with historical and emotional significance, however, Mr. McVeigh s execution would still be a matter of grave import. The United States government is sponsoring the killing of a human being, and it is doing so on behalf of its citizens. If the execution is carried out as scheduled, McVeigh will be the first civilian executed by the federal government since Victor Feguer was hung in Iowa in Proponents of execution point to the crime deterrence effect it ostensibly engenders. Opponents of execution point to the primitive and barbaric act of killing a human being which right no person nor government should have. In any event, the decision to execute is the result of a democratic process, and the act of putting a person to death is funded by citizen s tax dollars. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, but the people cannot determine whether execution, or a method of execution, falls within that scope unless they have the right to witness it. Public monitoring of the execution itself, and a transparent government process, is fundamental to debate and discourse relating to federal executions and the merits of such a significant event. See Houchins v. KQED, Inc., 438 U.S. 1, (1978) ( The reasons which militate in favor of providing special protection to the flow of information to the public about prisons relate to the unique function they perform in a democratic society. Not only are they public institutions,

19 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 4 of 7 financed with public funds and administered by public servants, they are an integral component of the criminal justice system. ) (Stevens, J., dissenting). THE PRESS HAS THE SAME RIGHT AS THE PUBLIC TO ACCESS AND REPORT ON THE EXECUTION The media has the same right as the public to prison access. Pell v. Procunier, 417 U.S. 817, 834 (1974). News gathering is protected by the First Amendment, for "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681 (1972). The press serves as the eyes and ears of the public, and in so doing can [contribute] to remedial action in the conduct of public business. Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978). The media, therefore, has the right to access the execution of Mr. McVeigh and bring the execution to the public. THE PUBLIC CANNOT ACCESS THE EXECUTION, AND THE PRESS CANNOT ACCURATELY REPORT, WITHOUT AUDIOVISUAL TRANSMISSION The Bureau execution protocol prohibits the use of recording and/or broadcasting devices as it imposes a sentence of death. By forbidding the sense of immediacy fostered by audiovisual reportage, the government insures that its most weighty actions will remain mere abstractions to the vast majority of the citizenry. Indeed, the Bureau s prohibition is unconstitutional [f]or the First Amendment does not speak equivocally... It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow." Bridges v. California, 314 U.S. 252, 263 (1941) (emphasis added). The Bureau cannot constitutionally restrict the type of expression made possible only via audiovisual broadcast. Supreme Court precedents make unmistakably clear that "any prior restraint of expression comes to [the] Court bearing a heavy presumption against its constitutional validity, and that the proponent of such drastic measures "carries a heavy burden of showing justification for [its] imposition." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976), quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (citations omitted); accord, New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam). The federal government is going to execute a man who killed hundreds, and in so doing destroyed thousands of lives. The United States will impose, for the first time in nearly forty years, a penalty that many nations condemn as barbaric. Consequently, the Constitutional right of the people to witness the government s act cannot be satisfied by

20 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 5 of 7 a handful of observers putting pen to paper in a room. The impact, emotion, veracity, effect, tension, and understanding of an event so grave as an execution can be depicted through audiovisual transmission, but is lost through mere verbal and written accounts. Audiovisual broadcast has led all other media as the primary source of news since the early 1960s. Roper Reports America's Watching: 30th anniversary, , at 14 (1989). Sixty-five percent of all adults acquire most of their news from television. Id. Indeed, only two percent of Americans derive their news from sources exclusive of audiovisual means. Id. By limiting reportage of executions to after-the-fact narratives, the government deprives the public of any meaningful opportunity to exercise their First Amendment right to obtain information. Furthermore, as Justice Powell recognized, the public is "the loser" when news coverage is limited to "watered-down verbal reporting, perhaps with an occasional still picture... This is hardly the kind of news reportage that the First Amendment is meant to foster." Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 581 (1977) (Powell, J., dissenting). In fact, in Cable News Network, Inc. v. American Broadcasting Cos., 518 F. Supp (N.D. Ga. 1981) in which that court faced the question of whether the White House could permissibly ban television coverage of certain presidential events while allowing print journalists to cover the same event, the court confessed that it was "at a loss to find any direct governmental interest served by the prohibition (emphasis added). Id. at In holding that the total exclusion of television coverage violated the First Amendment, the court reasoned: [I]t cannot be denied that television news coverage plays an increasingly prominent part in informing the public at large of the workings of government. Many citizens likely rely on television as their sole source of news. Further, visual impressions can and sometimes do add a material dimension to one's impression of particular news events. Television film coverage of the news provides a comprehensive visual element and an immediacy, or simultaneous aspect, not found in print media. Id. Most significantly, the court also held that the prohibition on television coverage was not remedied by the inclusion of print reporters: [T]he unique continuous visual element of television news coverage will be denied to the public and the press. Such film imagery which is so vital to television reporting cannot meaningfully be replaced by still photographs provided by the non-television participants in pool coverage. By totally excluding television participants, a complete visual record... is lost forever. Id.

21 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 6 of 7 PROHIBITION OF AUDIOVISUAL BROADCAST IS NOT NARROWLY TAILORED TO ANY IMPORTANT GOVERNMENT INTEREST The government may only limit the public s First Amendment right to access the execution upon a showing that its restrictions are "narrowly tailored" to further an overriding interest. Press I, 464 U.S. 501 (1984). Although states have alleged prison security interests, prisoner privacy interests, prison staff privacy interests, and public decency interests in support of their prohibitions on broadcasting or recording executions, there has never been a sufficient showing that a prohibition of broadcasting is narrowly tailored to further those interests. In the case of this execution, the government cannot assert any interest which would outweigh the public s First Amendment right to access the execution. To the contrary, the most important interest of this execution aside from justice is the victims right to be present when justice is carried out. In this case, the people of the nation are also victim to such an act of terrorism against the government. The Oklahoma City community is still shattered, and many other communities around the country continue to feel the effect of Mr. McVeigh s actions. Obviously, because the number of victims is so substantial, considerations of space, safety, and maintaining order prevent the government from allowing the general public to attend the execution in person. Consequently, the only practical way to allow a meaningful segment of victims to exercise their rights is to permit public broadcast of the execution. LOGISTICS OF ENI S WEBCAST ENI requests only that one (1) camera, the size of a small hand held personal video camera, and one (1) camera operator, be present at the execution. ENI will comply with any security or other reasonable restrictions or protocol the government may place on the camera and its operator. For example, upon request, ENI would deliver the camera to the Warden for inspection one (1) month before the execution date, and permit the government to hold the camera in its custody until the execution date. Similarly, the camera operator is willing to undergo any reasonable psychological evaluation or background investigation which the Warden deems appropriate. The camera will transmit a wireless signal to a broadcast facility vehicle, which vehicle will be parked about one (1) mile outside of the prison complex. The broadcast facility vehicle would then transmit the audiovisual signal of the execution to ENI s webcast headquarters in Tampa, Florida, where the signal would be made available to the public via the Internet. The camera operator will require only two (2) hours to setup the camera and establish connection to the broadcast facility vehicle.

22 Federal Bureau of Prisons United States Department of Justice March 20, 2001 Page 7 of 7 ENI plans to restrict the broadcast of the execution to adults only. To facilitate that goal, ENI will provide to parental control software providers (such as Net Nanny, Cyberpatrol, and SurfWatch) the uniform resource locator (i.e., URL or web address) of the site via which the execution will be broadcast. Additionally, ENI will require that its audience submit a credit card for further adult verification purposes. Though ENI will charge a nominal fee (± $1.95) so as to cause credit cards to be authorized, ENI will donate all gross revenue to charities for victims of the Murrah federal building bombing (i.e., ENI will not retain any revenue to recoup its substantial bandwidth, production, and other costs). CONCLUSION The public and press have a First Amendment right to attend the execution of Mr. McVeigh. The public has the right to access an audiovisual transmission of the execution. ENI is a member of the media which is experienced in disseminating events via Internet webcast. Accordingly, we respectfully request that the United States Department of Justice, and specifically the Bureau of Prisons, allow ENI to witness, and transmit to the public, the execution of Timothy McVeigh. Alternatively, ENI requests it be provided access to a live audiovisual broadcast of the execution, and permission to re-transmit the same via webcast, pursuant to 28 CFR (d). We expect a substantive response to this application by Wednesday, March 28, In the interim, ENI reserves all rights, claims, and causes of action against the government, including the right to bring an action for declaratory relief and injunction against the Warden of USP Terre Haute, Director of the Bureau, and Attorney General, pursuant to the First Amendment. Should you have any questions, please do not hesitate to contact the undersigned directly at (206) Very Truly Yours, NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP Derek A. Newman

23 EXHIBIT B

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