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RAYMOND PROCUNIER and ROBERT H. SCHNACKE

Ray Procunier deserved to be considered a First Amendment villain. He authorized and defended the oppressive California prison censorship rules in Procunier v. Martinez. But he got a chance to redeem himself, and he rose to the occasion.

The occasion was provided by Robert Schnacke, a federal district judge in San Francisco. Schnacke, like so many judges, was a former prosecutor. While a U.S. Attorney, he had even prosecuted a sedition case in the McCarthy era, charging writer John Powell with having accused the U.S. military of using germ warfare in the Korean War. Schnacke was a crusty, conservative Republican known to be hostile to civil liberties cases. But he had a maverick streak as well, perhaps evidenced by his being caught in a noontime police raid of the Market Street Cinema adult theater in the Tenderloin.

Procunier and Schnacke were two curmudgeonly old-timers who found themselves on opposite sides of a very difficult First Amendment issue: whether prison officials can prohibit news organizations from televising executions. No American execution has ever been televised.

On April 2, 1990, Robert Alton Harris was scheduled to be executed in the gas chamber at San Quentin. He would be the first person to be executed in California in a generation, since 1967, and the news media showed great interest in the event. Capital punishment was then the most decisive issue in California politics, and all candidates for governor and other statewide office had to be “for” it. In 1986, three justices of the California Supreme Court had been voted out of office because the voters perceived that they were frustrating majority will by stalling imposition of the death penalty. When Harris’s execution date was announced, virtually every news outlet in the state, national networks, and wire services, wanted to cover it. Warden Daniel Vasquez put out a media advisory stating that 12 media organizations would be allowed to witness the execution.

KQED, the public television station in San Francisco, had been following the political and judicial events relating to the death penalty and, at the time of the Harris announcement, was at work on a documentary on capital punishment. Michael Schwarz, a KQED producer, wrote to warden Vasquez and asked permission to videotape the execution. Vasquez curtly responded that no television equipment would be allowed. Indeed, his newly developed execution protocol provided that news media witnesses would not be permitted to bring any of the tools of their trade—no television cameras, no still cameras, no tape recorders, no sketch pads, no pencils, and no paper. They would have to cover the execution empty-handed.

Schwarz called me and asked whether a prison official can impose those kinds of restrictions on how news organizations cover such an important event. This First Amendment question was not easy. First Amendment protection is at its maximum when government tries to prohibit publication of information. But protection of news gathering is much more attenuated. The difference is between speech and conduct: the Supreme Court has always been more suspicious of government restrictions on the content of what a speaker says than of restrictions on the conduct involved in seeking out information for publication. But it was hard to imagine that the warden’s restrictions were really required by prison security. I thought they were unjustified. KQED, believing that decisions about how to cover a news event should not be made by the government official involved in the event, decided to sue.

We landed by random selection in Judge Schnacke’s court. The Harris execution was stayed, for reasons having nothing to do with our suit, and we had the time to do discovery and inquire into exactly how the execution procedures were set up and the reasons for the restrictions on news reporting. I went up to San Quentin and took the warden’s deposition, in which he testified that the reason for prohibiting cameras was to protect the identities of the guards who participated in the execution. We gathered information on how previous executions had been conducted. We also delved into the process by which news media witnesses were selected, learning that this was done by the governor’s press secretary, whose main obligation was to ensure favorable coverage of the governor and his policies. And we hired Ray Procunier as an expert witness.

Procunier probably had more experience with prison security issues than anyone in the country. He had been director of the California system for many years. He had worked his way up through the ranks and been warden at several institutions. After his retirement, he served as director of corrections in Texas, to reform that system after a federal court had found conditions there constitutionally intolerable. He had also run the Virginia and New Mexico systems, consulted on prison issues all over the country, and served as an expert witness in prison litigation for both prisoners and prison officials. He was unimpeachably the kind of person who was not a hired gun, and would testify to what he really believed. At the time of the KQED case, he was running the state prison in Nevada, called in to straighten things out there.

When I telephoned Procunier (I knew him from the Texas case as well from our earlier encounter in the Martinez case), I asked him whether there was any reason television cameras should be excluded from executions. He first said there was: to protect the “dignity” of the proceeding. When I said it seemed to me that was none of a prison official’s business, he readily agreed and said he knew of no security reason to limit television coverage. Procunier was a strong supporter of the death penalty, and a no-nonsense prison administrator, but he knew and was willing to testify that whether to televise executions was a political, judicial, or editorial judgment, and televising them would not imperil prison security.

We arranged, over the state’s opposition, a court-ordered visit to the gas chamber at San Quentin. Michael Schwarz, Procunier, and I went up there to poke around, test camera angles, and get a sense of how an execution could be televised without interfering with the process or unnecessarily capturing pictures of witnesses or guards who did not want to be on television. We were ready for trial.

Five days before the trial was to begin, warden Vasquez announced that he had changed the rules for carrying out executions. No reporters would be allowed to witness executions. News crews would not even be allowed on the grounds of San Quentin during an execution. No press coverage. The warden’s press release said the reason for this new policy was that “the lawsuit forces the warden to elect between forfeiting or retaining control of the prison.” It said he was unwilling to “invite” the press if that meant he might have to allow television coverage of the execution. The warden’s lawyers—the Attorney General’s office—immediately moved to dismiss our case as “moot,” arguing that if reporters had no right to be there at all, the court need not decide whether the warden had the right to restrict the tools of the journalist’s trade. They were confident that the press had no constitutional right to enter a maximum-security prison to observe an execution; no court had ever so held. So, in addition to the difficult issue of whether prison officials can restrict how news organizations cover the news, we had the blockbuster threshold question—does the press have any First Amendment right of access to government proceedings like executions?

The next Monday morning, when Judge Schnacke called the case for trial, he opened court by saying, “We pride ourselves on providing a level playing field for litigants here, but apparently we can’t provide a stationary one. I’m not sure what game we’re playing or what field we’re playing on this morning.” But he was not quite willing to let the warden steal the playing field, and he reluctantly agreed to let us put on our evidence and then deal separately with the question of whether the reporters had any right to attend executions at all.

Our strategy at trial was to demonstrate an obvious proposition: a picture is worth a thousand words. We also had to blunt the state’s arguments about revealing the identity of guards and other “security” problems.

Michael Schwarz was our first witness. Young, Yale-educated, bright, and a true believer in First Amendment freedoms, he was himself ambivalent about the death penalty, having been the victim of a violent crime. He patiently explained to a skeptical and impatient Judge Schnacke why KQED wanted to videotape the execution and how the use of a television camera contributed materially to the accuracy and completeness of the reporting, adding, “Pictures tell you things that words don’t.” Schnacke often cut Schwarz off, sometimes cynically questioning his motives and making it clear that the judge believed that the news media could not be trusted and wanted to sensationalize its coverage. For example, he questioned Schwarz on why it was necessary to capture a sound recording as well as video, saying he assumed KQED wanted to record “screams” to make the program more “saleable.” Questioning whether the media would really be satisfied with just one camera focused on the condemned man, he asserted that if Schwarz had his “druthers,” he would like to have “five cameras in there getting the reaction of all the witnesses and the reaction of the guards and everything else.”

This concern with television being an entertainment medium, wanting to capture “reaction” shots, reminded me of the opposition of many judges to televising trials. Most judges refuse to allow television in their courtrooms, citing concerns about creating a “circus” atmosphere that will interfere with the ability of jurors to concentrate on the evidence and of witnesses to remember and testify to what happened. But the trial participant most affected by a televised trial is the judge: the judge’s behavior is impeccable, fair, and courteous to all, a model of judicial demeanor; the judge never goes to sleep in a televised trial. The deputy attorney general in the KQED case often reminded Judge Schnacke that we were not allowed to bring a camera even to the same floor in the federal building, much less into the courtroom, and that it was presumptuous of us to think that we were entitled to take a camera into the heart of a maximum security prison.

Judge Schnacke also brusquely bossed me around. He refused to hear an opening statement about what the evidence would show, and he arbitrarily excluded or limited evidence relevant to how the broadcast technology worked and how KQED would use footage it shot. My then seven-year-old daughter attended the trial for a day and made sketches of the courtroom in a journal along with comments such as “My dad is asking questions,” and the judge is “teasing dad.” Among other things that the judge “teased” me about was KQED’s decision not to videotape an execution over the condemned man’s objection. This choice, which we stated at the outset of the case, was based partly on a sense of respect for the person’s wish for privacy and partly on not wanting to get sidetracked into litigation with the condemned man. Judge Schnacke ridiculed my willingness to give “veto power” over news coverage to a convicted murderer while denying any such power to the government official responsible for supervising the event.

Our witness George Osterkamp, a very experienced CBS News producer, testified that a television camera could serve as a “neutral witness” at an execution and would enable more complete and accurate coverage. He also emphasized, having done many pieces on world figures and momentous events from the past, how important videotape is for use as a historical record. Judge Schnacke was as sarcastic about Osterkamp’s motives as he was of KQED’s: “It would be a feather in your cap to have the first live broadcast of an execution ...”

When we called the great courtroom sketch artist Howard Brodie as a witness, the judge spoke of him with admiration, volunteering that “he got more into one picture than any TV program I’ve seen in years.” Brodie had covered the Watergate trial and testified about sketching many others: “From Chicago conspiracy, Jack Ruby, Manson, Mylai. I can’t think of them all. Most of our assassins.”

Brodie had witnessed the last execution in California, of Aaron Mitchell in 1967, and his gripping sketches were part of our evidence about the importance of pictures. He also vividly remembered that Mitchell, upon entering the death chamber, screamed, “I am Jesus Christ!” (He had attempted suicide the night before.) Newspaper accounts of the same event either did not mention this or had varying and inconsistent versions (one said he muttered “Oh, my Jesus Christ”), allowing us to argue that sound recording was needed for accurate reporting. The public’s reaction to the execution might be different if the condemned man is psychotic as opposed to merely resigned to meet his maker.

Our star expert witness was Ray Procunier. After establishing his qualifications and in light of our being on opposite sides in the Martinez case and in the Texas case, I asked him whether he had ever “been sued by any of my clients.” Procunier answered, “I’ve been sued by everyone that has a law degree in California.” In many of the lawsuits—an occupational hazard for prison administrators—he had been represented by Karl Mayer, the same deputy attorney general now representing the warden in the very case in which Procunier was testifying.

Procunier’s testimony about prison security problems from using broadcast equipment at an execution was unequivocal: none. He testified that “prison people historically are guilty of creating a lot of myths to make our business a lot more important and a lot more romantic than it really is.” In his expert opinion, whether to televise an execution “is not a correctional decision and ... it’s certainly not a security problem.”

On cross-examination by Mayer, he was asked about the prevalence of prison gangs and whether gang members might resort to violence if one of their members was executed on television. Procunier dismissed this possibility, again accusing prison officials of scare tactics: “[Since televising executions is] a political or judicial decision, I would hate to see this country deteriorate to the point where a few gang members would keep us from making that decision.... If you’re not careful, [prison officials will] run a lot of things that’s none of their business.”

In his cross-examination Mayer also inquired about the possibility of a cameraman hurling the heavy broadcast-quality camera at the glass in the execution chamber, shattering the glass, aborting the execution, and perhaps killing the witnesses in attendance. Amazingly, Judge Schnacke took this seriously and said: “There may be such a thing in this world as a suicidal cameraman.” Procunier thought that this bordered on the “bizarre.” In response to the judge’s question about how much risk the warden was “obligated to tolerate,” he testified that no risk was involved. The camera could be mounted out of reach on a tripod or on one of the pillars in the chamber far from the glass, where it could be operated by remote.

Because there had been no executions in California since 1967, Warden Vasquez had no experience at all in conducting one, so his testimony about the potential dangers dreamed up by his lawyers was unlikely to be persuasive. He therefore imported three highly experienced executioners, the wardens from Florida, Georgia, and Texas. The Florida warden testified that if he were required to allow television, he would resign. His position was partly based on his view that “the press doesn’t give a damn about the truth.” The Georgia warden said he was worried that he could not give his officers complete assurance that they would not be identified when they wanted to remain anonymous, and this too was based on his “mistrust of the media.”

The Texas warden, Jack Pursley, was the most experienced in the country, having supervised 38 executions, including one on the day we took his deposition. He testified that prisoner protests might accompany a televised execution. In Texas, some death-row prisoners had started a hunger strike after a recent execution. Asked by the deputy attorney general whether that presents a security problem, Pursley testified it does because “you’ve got a disgrumbled [sic] group of people that are attempting to buck on you—’buck’ is a [Texas] prison term for refusing to work—to prevent themselves from doing their required duties, so consequently, they’re a disgrumbled group.” His testimony provided an eloquent confirmation of Procunier’s testimony about prison officials reaching to find security perils to justify whatever they wish to justify.

I knew Pursley from the Texas case, where he had given me a tour of the death chamber, and I had cross-examined him at length about prison conditions there. He was on the job when Procunier had come in to reform the system, and I asked him whether anyone would have a better grasp of penology than Procunier. It caught Judge Schnacke by surprise when Pursley testified that “with Mr. Turner’s help ... our whole system was turned upside down, and we started over again.”

Schnacke asked, “Mr. Turner had a hand in that, too?” When I acknowledged that the warden and I went back a long way, the judge said, “You do get around.” Pursley’s testimony ended as follows:

TURNER: You’ve testified in 25 or 30 prison cases, haven’t you?

PURSLEY: Yes, sir.

TURNER: And in all of them, you’ve testified on the side of the prison system, isn’t that right?

PURSLEY: Yes, sir. I’ve always testified on the side of the prison system.

TURNER: And you testified in the Ruiz case, which is the case you’ve just mentioned?

PURSLEY: ‘79. Yes, sir.

TURNER: And the prison that you’re the warden of was held to be in violation of the federal constitution in that case, isn’t that right?

PURSLEY: That is correct.

Warden Vasquez testified that he, like the imported experts, was worried about the camera disclosing the identity of officers working the execution and that someone, some day, somehow, might retaliate against them. Although during Michael Schwarz’s testimony we had demonstrated in court ways of obliterating the identifying characteristics of anyone inadvertently caught on camera, Vasquez did not trust this electronic “masking.” He also testified that having a camera in the death chamber “would detract from the—whatever solemnness or dignity” of the occasion. To sum up, Vasquez concluded: “The picture in my mind of California wanting to witness—I’m sorry—to film an execution is just—I just can’t comprehend it.” This was another confirmation of Procunier’s view that prison officials will act beyond their purview if you let them.

The testimony about cameras was over, but the big question of whether reporters had any right to attend an execution at all remained unresolved. We asked Judge Schnacke to give us 30 days to develop evidence on this issue, and he agreed to hold the record open.

The trial had generated a great deal of media interest, around the country and around the world. I found myself on Nightline being quizzed by Ted Koppel, on the PBS News Hour, on CNN, on the Spanish equivalent of 60 Minutes, on radio talk shows, and I was interviewed by Italy’s La Repubblica, Agence France-Presse, and the U.K.’s Daily Telegraph. All the pundits, including George Will, Anthony Lewis, and William Buckley, did columns on the case. The opinions cut across positions on the death penalty. Many death penalty supporters thought televising executions would enhance the deterrent value of capital punishment; others thought it would merely create sympathy for the murderer being killed by the state. Some death penalty opponents supported the suit as confronting the hypocrisy of a barbarian society that wants murderers put to death but wants it done in secret. Others thought the entire prospect was ghoulish and would desensitize the public to the horror of what the state was systematically doing. Some people normally in favor of First Amendment freedoms balked at the idea of televising executions. Prominent First Amendment lawyer Floyd Abrams, predicting the courts’ reaction, told me, “They’ll treat it like obscenity.” (Obscenity has no First Amendment protection, as discussed in Chapter 8.) The New York Times columnist and author of two books on the First Amendment, Anthony Lewis, wrote a column acknowledging that we had “a strong argument for letting cameras in.” But he argued that we were inviting “a callousness that not even Dickens could imagine” and that the First Amendment does not require “access” to “scenes whose broadcast would further coarsen our society and increase its already dangerous level of insensitivity.” Lewis concluded, “We do not need to make executions just another entertainment. We do not need to accept the banality of evil.”

The “access” issue that Lewis referred to, and the one that Judge Schnacke had to resolve before reaching the cameras issue, emerged relatively recently in American law. Many are surprised that the First Amendment does not operate as a kind of Freedom of Information Act, satisfying the public’s right to know. In many other countries, such as Sweden, a major part of the constitution consists of provisions ensuring government transparency and guaranteeing the public and press access to both government proceedings and records. But the Freedom of Information Act was enacted only in 1966. And not until 1980 did the Supreme Court decide that there is any kind of First Amendment right of access, by either press or public, to government facilities, information, or proceedings.

In 1978, I lost a case for KQED in the Supreme Court in which a plurality of the justices held that the press had no right of access, for news-gathering purposes, to a county jail. The Court made it very clear that the First Amendment itself does not guarantee governmental openness, and it emphasized that the press does not have any right of access superior to that of the general public.

In 1980, the Court decided the first in a series of four cases in which it found a First Amendment right of access to certain government proceedings: criminal trials. Two of the cases, in 1984 and 1986, involved death penalty prosecutions. The Court determined that both press and public have a First Amendment right to observe criminal trial proceedings. The Court’s analysis had two steps. First, the Court looked to history. Was the proceeding historically open to public and press? If so, this created a presumption of openness. Second, in a practical, real world sense, did openness serve a valid purpose in a democratic society and enhance the integrity of the proceeding itself?

In these cases from the 1980s (the Court has never again considered the access issue and has not ventured beyond criminal trial proceedings), the Court found an unbroken 700-year history of open criminal trials in the Anglo-American judicial system. This satisfied the historical prong of the analysis. (When I went to Independence Hall in Philadelphia, I noticed that across the hall from the main attraction—the room where the framers wrote the Constitution—is a perfectly preserved 18th-century courtroom. You have to go through a door to enter the room where the constitutional deliberations were held in secret. But on the right, leading into the courtroom, there are three large arches and no door at all. Anyone entering the building can see everything in the courtroom and walk in at will. That struck me as an eloquent architectural statement of courtroom openness.)

Having determined that criminal trial proceedings historically were open to public and press, the Court then reasoned that openness served important purposes underlying the trial process itself. It ensured fair trials by discouraging perjury, bias, and misconduct. It educated the public about how a civilized society deals with crime and encouraged public acceptance of the system. And it had a kind of cathartic value, reassuring the public that crime had consequences and justice was being done. The Court determined that these factors all favored openness and concluded that criminal proceedings could not be closed to the public, including the press. These cases from the 1980s provided the framework for our contention that California executions could not be held in secret.

We had to do a lot of historical research, rooting around in old case reports, government archives, and newspaper morgues. We learned that California had never had secret executions. Hangings and gassings had not been pretty events, but they had never been concealed from the public. From Gold Rush days until 1858, hangings were carried out in public squares, and a substantial majority of Californians had witnessed them. In 1858, following the lead of eastern states—where the authorities found that public executions were disorderly events frequented by drunkards, hooligans, and pickpockets and concluded that they were teaching lawlessness rather than respect for the law—the California legislature passed an “Act to Abolish Public Executions.” From then on, executions would be performed by county sheriffs on jail grounds, but the law guarded against secret executions by requiring the executioner to invite “twelve respectable citizens.” The public witnesses would ensure that the execution was in fact carried out, that the right person had been dispatched, and that there was no torture or other mistreatment.

In the first execution after the 1858 law was passed, a San Francisco newspaper reported that “there were, in the prison, as spectators of the execution, about one hundred persons, among whom were ministers, officers, doctors, lawyers, reporters, etc.” Henry Morse, the condemned prisoner, addressed the crowd as he stepped to the gallows: “I am glad to see so many persons present to witness my execution. I hope it is not idle curiosity that has induced you to come here. I hope this awful example may make a proper impression. I hope you will persuade every one now deviating from the path of rectitude ... from their sinful ways.” Then, said the newspaper, “the miserable man was launched into eternity.”

It was evident from newspaper accounts and execution records that crowds, always including reporters, attended all 19th-century executions. In 1891, the Legislature amended the law to provide that executions be performed at Folsom and San Quentin state prisons rather than by county sheriffs. This amendment changed nothing about public and press access. In 1894, the San Francisco Examiner reported that the San Quentin execution of Lee Sing was well attended by the public and press representatives. According to the Examiner, Sing said to the assemblage, “Goodbye, all white men,” as he stepped “bravely upon the fatal trap.” Access by the public and press continued unabated in the 20th century, and some notorious hangings drew large crowds. For a 1936 execution, Earl Warren, then district attorney of Alameda County and later to become Chief Justice of the United States, wrote the warden of San Quentin on behalf of three men who wanted to witness an execution, vouching that “these are all men of integrity and are representative citizens in their communities,” and the warden obliged with invitations. For another 1936 execution, the Fresno sheriff got “permission to bring in 14 or 15 very close friends of this office.”

In 1937, the Legislature changed the method of execution from hanging to the administration of cyanide gas. All executions were to be performed at San Quentin, where the authorities constructed a gas chamber and a witness area with risers as if they were bleachers at a sports event. At the first lethal gas execution, in 1938, a double execution of Robert Cannon and Albert Kessel (two chairs were equipped in the death chamber), “approximately forty witnesses, including newspaper reporters” attended. Cannon “conversed with spectators and guards until a few moments before a lever, tripped from the outside, sent the cyanide pellets into the acid. The resulting chemical reaction created the deadly fumes which envapored the condemned men.” The San Francisco Examiner reported “undisguised feelings of revulsion, and frank declarations by prison officials and physicians that hanging is a quicker, more merciful method of execution, and widespread suspicions that the state’s new lethal gas chamber is a chamber of horror.” Scores of citizen and media witnesses continued to attend all executions. Sixty people witnessed the 1960 execution of Caryl Chessman, which was of course a media extravaganza. “So many people [were] present it seemed like going to a hanging in a public park,” reported Mary Crawford of the San Francisco News-Call Bulletin. Crawford, the first woman allowed to view a San Quentin execution, was personally invited by Chessman. She wrote: “I’ll never see another execution. I think they should invite the legislators who are opposed to the abolition of capital punishment, and let them see for themselves what it’s like.”

Howard Brodie was one of 58 who witnessed the execution of Aaron Mitchell, who was the last to be executed in California before Harris.

The long, unbroken history showed that the state had not been ashamed of executions. They were not hidden. News reporters had always been able to perform the role envisaged by the First Amendment: to inform the people what the government was doing in their name. So under the Supreme Court cases in the 1980s, there was a presumption that executions should be open to press and public.

The next question was whether openness served any useful purpose. To say that conducting secret executions—the kind of practice embraced by totalitarian dictatorships—was a bad and dangerous idea was easy. But the same factors that led the Court to determine that criminal trials should be open also favored open executions. First, openness ensured that executions would be properly conducted, with no torture or other mistreatment. Second, it showed the public the consequences of violent crime and educated people about the culmination of the capital punishment system. Third, it provided cathartic value, giving the public the relief that the ultimate punishment had been imposed.

As Michael Schwarz had testified, many executions had been aired on American television: firing squads from Kuwait and Romania; a beheading in Saudi Arabia; many hangings in Iran, China, Vietnam, and Cuba; simulated but very realistic executions on popular programs such as L.A. Law, HBO’s Somebody Has to Shoot the Picture, The Executioner’s Song (about Gary Gilmore’s firing squad), and a disgusting film showing both real (foreign) and fake executions called Faces of Death. In addition, the assassinations of John and Robert Kennedy and of Lee Harvey Oswald had been shown over and over. The most famous execution of all time, the crucifixion of Jesus Christ, had been realistically portrayed in the movie The Last Temptation of Christ (followed more recently by Mel Gibson’s The Passion of the Christ). But no real American execution had ever been shown. It seemed peculiar that the only executions the people were prevented from seeing were those conducted by their own government in their name.

We bundled up all the historical evidence and presented it to Judge Schnacke, adding the legal arguments based on the Supreme Court’s “access” cases, and showed up for a final hearing on June 7, 1991.

The judge had heard enough. He did not want to hear any closing argument; he was ready to rule. He put his feet up, leaned back in his chair, and delivered his judgment—orally. He cited no cases, engaged in no legal analysis of the complex issues; his opinion was pure stream of consciousness.

Schnacke began by saying that it was “probably irrational and unreasonable and capricious to bar the press at this point.” That was basically his ruling on the fundamental “access” issue. He was deciding, in the most off handed way and without even mentioning the First Amendment, that reporters had a right to witness executions. We breathed a quiet sigh of relief.

Turning to the television issue, Schnacke credited three of the justifications offered by Warden Vasquez for banning cameras. First, he noted that officers who participate in executions “frequently want their identities concealed” to protect them from retaliation by prisoners, or from gangs, “or from any element of the public that is possibly hysterically offended by the fact of the execution.” Schnacke concluded that their identity “might well be” revealed by a camera and “no rational way” was available to prevent cameras from intentionally or inadvertently capturing pictures of officers. Schnacke made this ruling despite the uncontradicted evidence that electronic masking would prevent identification of anyone and, as he himself ascertained during Michael Schwarz’s testimony, the warden would be able to review the masked videotape before its release. His ruling did not acknowledge how fanciful the retaliation scenario was or the fact that no officer had ever been retaliated against, anywhere, in the entire history of capital punishment.

Second, Schnacke referred to the “suicidal cameraperson” phenomenon, noting that cameras are “heavy objects” that might create some kind of “threat.” Schnacke credited this concern despite his having ascertained from several witnesses that a camera could be bolted down on a pillar or tripod and operated remotely, creating no threat to anything.

Third, Schnacke credited the testimony of the imported wardens that if prisoners themselves were to see a televised execution, it “could spark severe prisoner reaction that might be dangerous to the safety of prison personnel.” No evidence supported this as a realistic possibility, and the judge made this ruling despite his having learned from testimony that San Quentin is on a closed-circuit television system that can be shut down by the officials; rather than black out the execution for the prisoners, Schnacke’s ruling blacked it out for the general public.

The theme running through Schnacke’s “opinion” was that the warden is really not required to trust anybody and that prison officials are the experts. Schnacke asserted that even Ray Procunier would not tolerate any risk in the execution procedure, but Schnacke mischaracterized Procunier’s testimony. Procunier had testified, “I don’t see that my position would add one jot to the risk of an execution.” Procunier’s position had been made repeatedly and abundantly clear, as Schnacke well knew: televising executions would present no risk to prison security.

Judge Schnacke apparently thought his ruling would not be the last word and would be appealed. As he concluded his opinion, he complimented us for a case well tried and remarked, “I assume they hope this will be merely the first step on their way to achieving their goals, but unfortunately they’ve stumbled a bit on the first step.”

As it happened, neither side appealed. Judge Schnacke issued a permanent injunction prohibiting the warden from excluding the press from executions. The state chose not to appeal this issue, and the injunction is still in effect. KQED, for a variety of reasons, not the least of which was the unrelenting and unfair criticism of its desire to televise executions, chose not to appeal the cameras issue. KQED’s CEO said, “We believe that the spirited public debate engendered by the case is in the healthiest tradition of the First Amendment,” but that the station had concluded that “[i]t is better not to pursue litigation, but let the public debate on this issue continue in forums other than the court.”

Judge Schnacke earned First Amendment villain status not simply for ruling erroneously on First Amendment issues, and not simply for taking liberties with the evidence, knowing that his rulings were not supported by any persuasive evidence. Rather, his main fault was abdicating the proper judicial role in First Amendment controversies. Every time the government attempts to suppress speech, and the case lands in court, the government claims that competing values require suppression of the speech in question. For example, California argued in Yetta Stromberg’s case that waving a red flag would encourage people to want to overthrow the government; the Nixon administration argued that allowing the New York Times to publish the “Pentagon Papers” would gravely imperil national security. Contested speech is by definition unpopular and always implicates potential disorder, defiance of authority, and deviation from majoritarian norms. To have free speech, one must tolerate these unsettling qualities. A society that tolerates no risk is not free.

Judges, however, are by nature risk-averse. Their daily duties involve enforcing societal norms. They concern themselves with decorum, order, convention, and rationality. They are part of the government apparatus, have no innate distrust of government officials, and are disposed to give government the benefit of the doubt.

But enforcing the First Amendment requires judges to aim a healthy skepticism at the government’s asserted reasons for restricting unpopular speech. Judge Schnacke failed to do that. Judges must hold the government to its burden of proof of establishing that the reasons are not conjectural and in fact are supported by persuasive evidence, that the government’s interest in restricting the speech in question really is compelling, and that the interest cannot be served by less restrictive means. Without judges willing to scrutinize officially professed concerns about risk, we will have only orthodoxy, not the First Amendment freedom we claim to want.

When the Supreme Court decided that access to criminal trial proceedings is a First Amendment right, Chief Justice Warren Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” That is not invariably true. In some instances—such as the death penalty, war, and the slaughterhouses from which our meat comes—people accept the practice because they do not see what is happening.

So do I want executions actually to be televised? Certainly not. For many reasons (cost, system fallibility, the inability to distinguish the few first-degree murderers who “deserve” the death penalty from the thousands who do not, and humanitarian concerns), we should not have a death penalty at all. I assume televising executions would be degrading for all, participants and spectators, and I abhor the prospect. But the only thing worse than televising executions is allowing our government both to continue to conduct executions and to prohibit the people from watching them.