Corrections regulations limiting reports on executions struck down

OREGON–Administrative rules limiting access to and speech about executions by witnesses, including news media, were overturned by the Oregon Supreme Court in late July.

Under the Department of Corrections rules, execution witnesses could not disclose any information that might identify persons involved in the execution. Also witnesses could only observe the actual administration of the lethal injection, and were barred from observing preparations for the execution.

The high court said it recognized that the department’s interest in security and safety may permit it to “limit the activities of persons on its premises in ways that the government generally could not limit activities outside a prison setting.” But nothing in the statutes “can be read so broadly” as to allow the requirement that witnesses waive their free expression rights, the court said.

Nondisclosure requirements on witnesses who have a right to attend exceeds the department’s rulemaking authority, the court held.

The court also held that the “execution” includes actions “linked inextricably with the administration of the fatal drugs,” including connecting special monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting a catheter for administering the fatal drug.” The department cannot make rules that keep the witnesses from viewing any of those acts, the court concluded.

Because it found the rules exceeded the department’s authority, the court declined to rule on the First Amendment issues raised by media organizations. (Oregon Newspaper Publishers Ass’n v. Oregon Dep’t of Corrections)