U.S. District Court Judge John Tinder ruled that the Federal Bureau of Prisons' policy regulating the viewing of executions did not violate Entertainment Network's First Amendment rights. The ruling also applied to Liveontheweb.com, another company seeking to broadcast the execution over the Internet.
The plaintiffs "seek not just to view the execution--they seek to film it and broadcast it simultaneously over the Internet so that anyone willing to pay a fee for viewing this event can do so," Tinder wrote in his 31-page decision for the U.S. District Court for the Southern District of Indiana. "What these media organizations seek is unprecedented in that a live media broadcast of an execution has never occurred in the history of the death penalty in this country."
Entertainment Network said it is planning to file an appeal Friday either to the 7th U.S. Circuit Court of Appeals or directly to the U.S. Supreme Court.
The company's attorney, Derek Newman, argued during the hearing that the federal prisons agency was acting unconstitutionally in barring his client from Webcasting the execution. Federal law allows a small group of experienced reporters to be present during executions to bring the magnitude of the event to the public. But the law does not permit audio or visual recordings.
Entertainment Network is framing its battle with the government in terms of free speech, saying that it has a constitutional right to convey information.
The company faces a tough legal battle, especially since court precedent is firmly against it.
"There is no harm in trying," said Robert O'Neil, a professor at the University of Virginia and the director of the Thomas Jefferson Center for the Protection of Free Expression. "But I doubt very much that they could make a claim that traditional media has not already made.
"The assumption is that allowing witnesses to observe in person satisfies whatever obligation the government has of such a public event."
O'Neil said he doesn't envision much of a chance of victory for Entertainment Network in the appeals court, adding that he doesn't "see any basis on which the Supreme Court would have any interest in this issue."
The First Amendment has been cited many times in previous cases in an attempt to win the right to broadcast executions. Several TV stations have sued to record the final moments of life of convicts on death role--for either live or delayed broadcast. None has succeeded to date.
Entertainment Network's suit against the Justice Department and the Federal Bureau of Prisons is a milestone, marking the first time an Internet company has tried to pry open the doors to the witness chamber and connect it to the Web.
Timothy McVeigh is scheduled to be executed May 16 for the 1995 bombing of a federal building in Oklahoma City that killed 168 people. The Bureau of Prisons will allow bombing victims, their families and a small group of journalists to view the execution.
U.S. Attorney General John Ashcroft earlier this month said he would allow the execution to be broadcast over a closed-circuit network because it was not possible to have all the victims of the bombing in the witness chamber. He did not, however, address Webcasting.
Before this controversy arose, Entertainment Network was better known for running several exhibitionist Web sites.
Entertainment Network previously said it would charge for the Webcast as a way to stop children from viewing the execution. The company said it would give the proceeds from the Webcast to bombing victims.