Associated Press v. Neal — Media have no First Amendment right to attend executions

The Court’s Holding

The Seventh Circuit affirmed, holding that the media have no qualified First Amendment right of access to executions. Writing for the majority, Judge Scudder reasoned that the experience-and-logic framework from Press-Enterprise II—which asks whether a proceeding has historically been open and whether public access serves a significant function—applies only to traditional court proceedings, not executions. An execution occurs after the adjudicative process concludes and does not resemble a judicial proceeding. Public scrutiny of executions cannot provide the same checks on judicial actors or fact-finding functions that justify access to trials and related proceedings.

Even assuming the framework applied, the court found executions fail the “experience” prong. Although executions were public spectacles at the nation’s founding, beginning in the 1830s states—including Indiana in 1852—legislatively prohibited public executions. The last public execution in the United States occurred in 1937. This long-standing trend away from openness, the court concluded, contradicts any claim of a tradition of public access. Limited historical attendance by select witnesses did not render executions “open to the press and general public” in the constitutional sense.

On the Press Clause claim, the court held that Indiana’s policy does not discriminate against the press. The statute and guidelines prohibit all members of the public, including journalists, from attending unless they fall within approved categories. The press enjoys the same rights as the general public—they may attend if invited by the inmate, just as non-media members may attend if they are family or spiritual advisors. This generally applicable policy does not trigger heightened scrutiny.

Key Takeaways

• The Supreme Court’s right-of-access doctrine, developed in cases involving criminal trials and preliminary hearings, does not extend to executions, which fall outside the adjudicative process.
• The absence of a tradition of public access—owing to legislative prohibitions enacted over 170 years ago—defeats any First Amendment claim to attend executions.
• Laws that apply equally to the press and the general public do not violate the Press Clause even if they incidentally limit press access to information.
• The media do not possess a constitutional right to special access beyond that afforded ordinary citizens.

Why It Matters

This decision rejects an expansive reading of the First Amendment’s right of public access to government proceedings. The court declined to import the experience-and-logic test beyond its traditional domain of judicial and quasi-judicial proceedings. The holding forecloses a significant avenue for press challenges to state execution policies and underscores the limits of the First Amendment’s protections for newsgathering when a state treats the press no differently than the public at large.

The case also highlights a circuit split: Judge Jackson-Akiwumi’s dissent noted that the Ninth Circuit reached the opposite conclusion in California First Amendment Coalition v. Woodford, holding that a tradition of limited public access to executions satisfied the experience prong. The majority’s decision thus stands in tension with other federal courts and reflects the Seventh Circuit’s narrower conception of when the qualified right of access applies beyond the criminal justice context.