BH Media Group v. Clarke

Amicus brief filed by the Reporters Committee for Freedom of the Press and 23 media organizations

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: Sept. 11, 2020

Background: In September 2019, the Richmond Times-Dispatch, Guardian News & Media, Associated Press, and Gannett filed a lawsuit against the director of the Virginia Department of Corrections, contending that the department violated their First Amendment right to access the entirety of execution proceedings when it changed its execution protocol in 2017. The protocol change, which prevents the public from viewing the preparatory portion of the execution process, occurred after the VDOC drew media scrutiny following the problematic execution of Ricky Gray.

VDOC Director Harold Clarke filed a motion to dismiss the suit, which the U.S. District Court for the Eastern District of Virginia granted. The district court held that the First Amendment access right applies only to certain pre-judgment adjudicatory proceedings in a criminal prosecution. The district court determined that, because an execution occurs post-judgment, it is categorically excluded from the First Amendment right of access.

The news organizations appealed to the U.S. Court of Appeals for the Fourth Circuit. They argued that the court should apply considerations of “history and logic,” as instructed by U.S. Supreme Court precedent, to determine whether a First Amendment right of access applies. Under those factors, the right applies when “the place and process have historically been open to the press and general public” and when “public access plays a significant positive role in the functioning of the particular process in question.”

Our Position: The Fourth Circuit should reverse the district court’s decision dismissing the news organizations’ complaint and remand the matter to the district court so it can apply the history and logic framework to its decision.

• The First Amendment right of access plays a structural role in our representative democracy.
• The First Amendment right of access is key to preserving other constitutional rights such as the ability of the public and legislators to make an informed decision about the validity and efficacy of capital punishment.
• The district court misread Supreme Court and circuit precedent when it concluded that the First Amendment right of access applies only to pre-judgment criminal adjudications.

Attorneys at the Southern Methodist University First Amendment Clinic and Vinson & Elkins LLP represented the media coalition in this brief.

Quote: “Access to information about government proceedings allows voters, legislators, and judges to evaluate those proceedings and ensure they comply with other Constitutional guarantees.”

Related: Earlier this year, the Reporters Committee, Society of Professional Journalists, and 15 media organizations filed a friend-of-the-court brief supporting an attorney seeking access to records about the Indiana Department of Correction’s lethal injection drugs. The brief argued that a state law making the identity of lethal injection drug suppliers confidential violates the First Amendment and restricts important reporting on a matter of public concern.