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The fight to Webcast an execution

David Marshlack on why he sought to put the execution of convicted Oklahoma City bomber Timothy McVeigh on the Internet.

David Marshlack is probably one of the few executives who has to cite the U.S. Constitution to stay in business.

Marshlack, the chief executive of Entertainment Network, brought you, a controversial Webcast featuring young men who are often nude, hanging about their house in Tampa, Fla. When Tampa officials had the police raid the house, temporarily halting the Webcast for allegedly violating zoning regulations, Marshlack declared the move a "storm-trooper action" that was "totally unconstitutional."

In 1999, the Tampa City Council voted to shut down another one of his businesses,, similar to DudeDorm but with women. Marshlack vowed to fight all the way to the U.S. Supreme Court if necessary.

Looking back, those controversies may seem trivial compared with the firestorm Marshlack has recently courted. The 37-year-old executive cited the First Amendment, which protects the freedom of the press, to try to win the right to Webcast the execution of convicted Oklahoma City bomber Timothy McVeigh, whose terrorist actions took the lives of 168 men, woman and children.

Whether McVeigh wants it or not, this isn't about McVeigh for us. This is about the right to censor and the American people's right to be able to view it. Last month, the U.S. District Court ruled that the Federal Bureau of Prisons' policy regulating the viewing of executions does not violate Entertainment Network's First Amendment rights. Marshlack threatened to take the case all the way to the Supreme Court.

But based on the advice of his lawyers, Marshlack on Tuesday decided not to appeal the case, saying that the lack of time to stage a strong appeal was the factor that unraveled his position. McVeigh is scheduled to be put to death at a federal prison in Terre Haute, Ind., on May 16.

In an interview with CNET, Marshlack defended his push to Webcast the final moments of McVeigh's life.

Q: Why did you decide not to appeal the case?
A: The reason we are not appealing it is that after looking at the whole case and under our counsel's advice, we just don't feel that we can launch an effective appeal quick enough to get it done on time.

We have always said from day one that we did not want to hinder or stop justice from being carried out.

We have decided to step back and be proud that we were the first to try and go after something like this to prove that it is our right and the right of the media.

Business issues aside, are you personally for or against the death penalty?
It's really not what I'm about. This is more about the First Amendment issue involved in the right to information. I usually don't talk about whether I'm involved or not, what my beliefs are, because I don't want to muddy up what the real issues are here in this case.

Why would it make a difference that your medium is the Internet, rather than broadcast television?
Because on the Internet you're able to child-protect it. That is the main way. Number one, if people have to go look for it on the Internet, it's not put in front of them. We believe in this. The press definitely came. But even if it didn't come we still would have fought for it. While on the TV, if you've got a child at 7 o'clock in the morning flipping through channels, watching cartoons, and he comes across the execution, that's a problem. On the Internet we're able to control who views it.

McVeigh has said that he wants his execution broadcast, which many argue would give him a platform to appear like a martyr and perhaps add to his following. How do you counter that argument?
Whether McVeigh wants it or not, this isn't about McVeigh for us. This is about the right to censor and the American people's right to be able to view it.

I also don't think that putting McVeigh on the Internet live and watching his execution carried out makes him any more so a martyr than with all the press he has received so far. I mean, he's in every newspaper every day. He's the topic on every talk show every day. He's on every television station. So I don't believe viewing the execution is going to make him any more powerful or anything like that.

You were just talking about how on the Internet, you can control who would see this Webcast vs. broadcasting on television. But do you think there are people out there already working on trying to figure out ways to crack the government's encrypted closed-circuit broadcast that's going to be delivered to the relatives and victims of the bombings?
I'm sure there's going to be people out there working on that. And I'm also sure that somebody will videotape it or something...and it'll get out. You know, the difference if we would put it on an Internet feed is that we've been protecting feeds for five years now. We know how to do it. We won't have a problem with it. But even then, there's always a possibility that it could get out.

And if it does get out in the form of a video and you get a version of it, are you going to Webcast it?

Are you worried at all about the consequences if you wind up with a tape in your hands? What it could mean in terms of government action or lawsuits?
You mean if somebody else records it and gives it to us afterwards?

Yeah. And if you don't have the permission.
We would not broadcast it. Absolutely not.

You're getting a lot of media attention. Some might even say that was your goal, to draw attention to your other businesses.
You know, this is more about our belief. I mean, we spent a lot of money on this just with legal fees and everything...and this is really about our belief. We believe in this. The press definitely came. But even if it didn't come, we still would have fought for it.