Associated Press v. Nelsen

Tennessee’s execution protocols bar the press from witnessing all but the execution itself. Under the State’s policies, members of the media may observe execution procedures only for a short time after the person being executed has been strapped to the gurney or the electric chair. Yet the stages before and after that period—when staff lift the prisoner and strap them onto the gurney, prepare materials, insert IV lines or attach ankle sponges, and later inspect the body—are critical. The public needs to know how they work, or don’t work, to participate in informed debate about such a momentous exercise of state power.

The Associated Press challenged this limitation on press access, raising claims under the federal First Amendment, Tennessee statute, and Article I, Section 19 of the Tennessee Constitution, which guarantees the freedom of the press “to examine the proceedings” of “any branch or officer of the government.”

Our brief, while supporting the Associated Press more generally, focuses on the state constitutional claim. It explains why the right to “examine” necessarily entails a right of access. And it argues that executions in their entirety constitute “proceedings” within the meaning of Article I, Section 19. In light of the text, history, and state values undergirding this constitutional provision, we argue that the state high court should affirm a trial court order permitting the requested press access to executions.