The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-2025
ASSOCIATED PRESS, et al.,
Plaintiffs-Appellants,
v.
RON NEAL and LLOYD ARNOLD,
Defendants-Appellees.
____________________
Appeal from the United States District Court for
the Southern District of Indiana, Indianapolis Division.
No. 1:25-cv-00872-MPB-MJD — Matthew P. Brookman, Judge.
____________________
ARGUED FEBRUARY 18, 2026 — DECIDED JUNE 5, 2026
____________________
Before SCUDDER, JACKSON-AKIWUMI, and PRYOR, Circuit
Judges.
SCUDDER, Circuit Judge. Indiana permits a select few
groups of people to attend executions. Members of the public
may attend only if the offender invites them. The same rule
applies to the media. Several media groups challenged this
policy on First Amendment grounds and moved for a prelim-
inary injunction to allow them to view forthcoming execu-
tions. The district court denied the motion, and we affirm.
2 No. 25-2025
I
Indiana allows only the following people to attend execu-
tions: (1) the state prison warden; (2) those assisting in the ex-
ecution; (3) the prison physician; (4) one other physician; (5)
the inmate’s spiritual advisor; (6) the prison chaplain; (7) up
to five people invited by the inmate to attend; and (8) up to
eight of the victim’s immediate adult family members. See
Ind. Code § 35-38-6-6(a).
The State’s Department of Correction has adopted “appro-
priate guidelines to enable the Indiana State Prison to comply
with state statutes governing the administration of the death
penalty.” ISP 06-26: Execution of Death Sentence (June 17, 2024),
Dkt. 9, App. 16; see also Ind. Code § 35-38-6-1(d) (authorizing
the adoption of rules). Those guidelines instruct the Depart-
ment’s Commissioner to designate a staff person who will as-
sist with media leading up to the execution. See ISP 06-26 at
3. They also authorize members of the media to remain in a
designated area outside of the execution chamber until the ex-
ecution ends. See id. The guidelines clarify that “[m]edia per-
sonnel shall not be permitted to witness the execution” unless
the prisoner includes them on “the list of five … persons” in-
vited to witness the execution. Id.
No aspect of the Indiana statute or the Department of Cor-
rection implementing guidelines restrain media reporting on
executions. Journalists remain free to interview witnesses, re-
port on any aspect of the proceeding, and comment as they
wish on the State’s choice to allow capital punishment or to
execute a particular person.
In May 2025, the plaintiff media outlets invoked 42 U.S.C.
§ 1983 and sued the Superintendent of the Indiana State
No. 25-2025 3
Prison and the Commissioner of the Indiana Department of
Correction in their official capacities. They raised two as-
applied claims. They alleged that Indiana’s policy violates
their qualified First Amendment right of access to certain
government proceedings. They also contended that the State’s
policy violates the Press Clause of the First Amendment by
unfavorably singling out members of the press. Their
complaint sought declaratory and injunctive relief.
A week later the plaintiffs moved for a preliminary injunc-
tion. They asked the district court to enjoin enforcement of
Section 35-38-6-6(a) of the Indiana Code and to order that they
may attend any Indiana execution carried out before the entry
of judgment in this case.
The district court denied the motion, concluding that the
plaintiffs had failed to show a likelihood of success on the
merits for either claim. As to the right-of-access claim, the dis-
trict court held the Supreme Court’s relevant doctrinal frame-
work neither applied nor favored the plaintiffs. And as to the
Press Clause claim, the district court determined that it was
likely to fail because Indiana treats members of the press the
same as members of the public.
The plaintiffs appealed.
II
We begin with the First Amendment right of access to
view Indiana executions.
A
“[T]he Supreme Court has recognized a limited right of
access to certain governmental proceedings, specifically those
related to the judicial process.” Dahlstrom v. Sun-Times Media,
4 No. 25-2025
LLC, 777 F.3d 937, 947 (7th Cir. 2015). Across a series of cases,
the Court has “emphasized two complementary considera-
tions.” Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986) (Press-
Enterprise II). Because a “tradition of accessibility implies the
favorable judgment of experiences,” it has “considered
whether the place and process have historically been open to
the press and general public.” Id. (quoting Globe Newspaper Co.
v. Super. Ct., 457 U.S. 596, 605 (1982)). Further, “the Court has
traditionally considered whether public access plays a signif-
icant positive role in the functioning of the particular process
in question.” Id. These considerations implicate “experience”
and “logic” respectively. Id. at 9. And “[i]f the particular pro-
ceeding … passes these tests of experience and logic, a quali-
fied First Amendment right of public access attaches.” Id.
We doubt this framework applies to executions. The
Supreme Court has only ever used it to assess whether the
public has a right of access to traditional aspects of criminal
proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 13
(holding that “the qualified First Amendment right of access
to criminal proceedings applies to preliminary hearings”);
Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 503, 505–10 (1984)
(Press-Enterprise I) (holding that the “guarantees of open
public proceedings in criminal trials” apply to the
examination of potential jurors); Globe Newspaper Co., 457 U.S.
at 604–07 (holding that the qualified “right of access to
criminal trials” applies to testimony by minor victims of
specified sexual offenses); Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 580 (1980) (plurality opinion) (“We hold
that the right to attend criminal trials is implicit in the
guarantees of the First Amendment ….”).
No. 25-2025 5
For our part, we have only applied this framework to
“court proceedings” and related “documents.” Courthouse
News Serv. v. Brown, 908 F.3d 1063, 1069 (7th Cir. 2018) (con-
cluding that “the First Amendment right of access extends to
civil proceedings and associated records and documents”);
see also In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998)
(“[T]he ‘public’s right of access to court proceedings and doc-
uments is well-established.’” (quoting Grove Fresh Distribs.,
Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994))).
An execution does not resemble a court proceeding. It oc-
curs outside the adjudicative process, after the factfinder has
determined guilt and the trial court has imposed a sentence
and terminated the case. Cf. Bradley v. United States, 410 U.S.
605, 609 (1973) (“In the legal sense, a prosecution terminates
only when sentence is imposed.”). Nor does more open public
scrutiny of an execution “provide a check on the activities of
judges and litigants” or “foster more accurate fact finding.”
United States v. Eppinger, 49 F.3d 1244, 1252–53 (7th Cir. 1995)
(cleaned up) (identifying values served by “[t]he public’s
right of access to court proceedings and documents”).
B
Even assuming Press-Enterprise II’s “experience” and
“logic” test applies, the plaintiffs still lack a qualified First
Amendment right of access to view Indiana executions.
First, executions have not “historically been open to the
press and general public” in many parts of the country for
over a century. Press-Enterprise II, 478 U.S. at 8; see also El
Vocero de Puerto Rico (Caribbean Int’l News Corp.) v. Puerto Rico,
508 U.S. 147, 150 (1993) (looking “to the experience …
throughout the United States” (cleaned up)). At the
6 No. 25-2025
Founding, “executions in the United States were held in pub-
lic, often in the ‘public squares or commons.’” John D. Bessler,
Televised Executions and the Constitution: Recognizing a First
Amendment Right of Access to State Executions, 45 Fed.
Commc’ns L.J. 355, 359 (1993) (quoting Louis P. Masur, Rites
of Execution 59 (1989)). But in the 1830s, several states “began
to prohibit public executions.” Id. at 360. “By 1845, states in
the eastern and midwestern regions of the nation executed all
of their criminals in private.” Dane A. Drobny, Death TV: Me-
dia Access to Executions Under the First Amendment, 70 Wash.
U. L.Q. 1179, 1191 (1992). Indiana followed suit in 1852, re-
quiring executions to occur “in some private enclosure as near
to the jail as possible.” 1852 Ind. Acts, vol. II, 379 § 134.
The last public execution in the United States occurred in
1937. See Bessler, Televised Executions and the Constitution, at
365. By the time of World War II, “executions, which had once
been frequent public spectacles, became infrequent private
affairs.” Furman v. Georgia, 408 U.S. 238, 340 (1972) (Marshall,
J., concurring); see also id. at 297 (Brennan, J., concurring)
(“No longer does our society countenance the spectacle of
public executions, once thought desirable as a deterrent to
criminal behavior by others.”). Today, as both sides agree, all
executions take place in facilities with only a small number of
witnesses. This history “demonstrates a decided and long-
standing trend away from openness.” PG Pub. Co. v. Aichele,
705 F.3d 91, 110 (3d Cir. 2013) (applying the Press-Enterprise II
framework).
To be sure, the plaintiffs observe that many of the nine-
teenth-century statutes prohibiting public executions still al-
lowed some observers to attend the private executions. See,
e.g., 1835 N.Y. Laws 299 § 2 (requiring sheriffs to invite
No. 25-2025 7
“twelve reputable citizens”); 1836 N.H. Laws 241–42 § 5 (sim-
ilar); 1882 Md. Laws 630–31 § 31 (allowing sheriffs to appoint
“such other persons, not exceeding twenty” to attend); 1887
Ark. Acts 29 (permitting up to “twenty-five” witnesses).
From there the plaintiffs add that several states invited the
press to attend private executions around this time as well.
See, e.g., 1885 Ohio Laws 170 (allowing sheriffs to invite “a
reporter for each one of the two leading newspapers of oppo-
site politics”); The First Judicial Hanging in the State in Six Years,
Mount Pleasant Wkly. News, Nov. 7, 1864, at 6,
https://perma.cc/XZF5-8BKU (reporting that “representatives
of a score of newspapers and as many sheriffs, together with
a dozen privileged persons, were admitted” to an execution
in Iowa).
But this limited public access did not render executions
“open to the press and general public.” Press-Enterprise II, 478
U.S. at 8 (emphasis added). The Supreme Court has always
looked for more categorically open invitations. See, e.g., id. at
10 (“Long ago in the celebrated trial of Aaron Burr for treason,
for example, … the probable-cause hearing was held in the
Hall of the House of Delegates in Virginia, the courtroom be-
ing too small to accommodate the crush of interested citi-
zens.”); Press-Enterprise I, 464 U.S. at 507 (accepting historical
account that sixteenth-century jury selection occurred
“openly in the presence of the Judges, the Justices, the inquest,
the prisoner, and so many as will or can come so near as to hear it”
(emphasis in original) (cleaned up)); Richmond Newspapers,
448 U.S. at 564 (plurality opinion) (“What is significant for
present purposes is that throughout its evolution, the trial has
been open to all who care to observe.”). Allowing a dozen or
so witnesses to view a largely private execution does not
8 No. 25-2025
signal that public executions enjoy “the favorable judgment
of experience.” Press-Enterprise II, 478 U.S. at 11 (cleaned up).
The Ninth Circuit disagrees. It held in California First
Amendment Coalition v. Woodford that this “tradition of at least
limited public access to executions” satisfied the experience
prong. 299 F.3d 868, 876 (9th Cir. 2002). In its view, the fact
“[t]hat only select members of the public attend does not
erode the public nature of executions” because “these official
witnesses act as representatives for the public at large.” Id.
In so reasoning, the Ninth Circuit relied on Richmond
Newspapers, where the Supreme Court recognized a right of
public access to criminal trials. See Woodford, 299 F.3d at 876
(citing Richmond Newspapers, 448 U.S. at 573). A plurality of
the Court in Richmond Newspapers acknowledged that “at-
tendance at court is no longer a widespread pastime” because
“people now acquire” information about trials chiefly
“through the print and electronic media.” Richmond Newspa-
pers, 448 U.S. at 572–73. Despite this decreased attendance, the
plurality opinion concluded that there was an “unbroken, un-
contradicted history” of opening criminal trials to the public.
Id. at 573. The basic idea was that decreased attendance did
not imply closure to the public.
Executions are different than trials. The public did not
merely lose interest in watching them first-hand. Rather, peo-
ple stopped attending because states passed laws prohibiting
them from doing so. We therefore disagree with the Ninth
Circuit and hold that executions have not historically been
“open to the press and general public.” Press-Enterprise II, 478
U.S. at 8. Because this opinion splits with the Ninth Circuit,
we have circulated it among all judges of this court in regular
No. 25-2025 9
active service. See 7th Cir. R. 40(e). No judge favored rehear-
ing the case en banc.
Second, public access to executions does not clearly play a
“significant positive role in the functioning” of the process. Id.
at 8. On the one hand, plaintiffs make the fair and compelling
point that increased scrutiny may lead to more humane and
competently administered executions. But “[a]ny inquiry into
whether a role is positive must perforce consider whether it is
potentially harmful.” N. Jersey Media Grp., Inc. v. Ashcroft, 308
F.3d 198, 200–01 (3d Cir. 2002). And as Indiana underscores,
allowing uninvited strangers with no immediate connection
to the underlying crime to watch a prisoner die risks offend-
ing the dignity of their final moments.
We need not reach a firm conclusion on this second con-
sideration. The Supreme Court has explained that “a qualified
First Amendment right of public access attaches” when a par-
ticular proceeding passes both “tests of experience and logic.”
Press-Enterprise II, 478 U.S. at 9. It is enough for us to agree
with the Third Circuit that no right attaches based solely on
logic “where history is ambiguous or lacking.” N. Jersey Media
Grp., 308 F.3d at 213; In re Reps. Comm. for Freedom of the Press,
773 F.2d 1325, 1332 (D.C. Cir. 1985) (majority opinion by
Scalia, J.) (“An historical tradition of at least some duration is
obviously necessary ….”). Our holding that executions have
not historically been open to the press and the general public
forecloses any likelihood of success on the merits.
III
The plaintiffs next claim that Indiana’s policy violates the
First Amendment’s Press Clause by treating them less
10 No. 25-2025
favorably than members of the public because they are mem-
bers of the press. Once again, we disagree.
A
The First Amendment provides that “Congress shall make
no law … abridging the freedom … of the press.” U.S. Const.
amend. I. But it is well-established that “generally applicable
laws do not offend the First Amendment simply because their
enforcement against the press has incidental effects on its abil-
ity to gather and report the news.” Cohen v. Cowles Media Co.,
501 U.S. 663, 669 (1991). That is because “the First Amend-
ment does not guarantee the press a constitutional right of
special access to information not available to the public gen-
erally.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972). This same
observation explains why the Supreme Court long ago held
that “newsmen have no constitutional right of access to pris-
ons or their inmates beyond that afforded the general public.”
Pell v. Procunier, 417 U.S. 817, 834 (1974).
B
Section 35-38-6-6(a) and Prison Guidance 06-26 do not dis-
criminate against members of the press. Those provisions pro-
hibit all members of the public, including the press, from at-
tending executions unless they fit into one of the approved
categories of observers. Prison Guidance 06-26 takes pains to
clarify that media personnel may attend executions just like
anyone else if the prisoner invites them. This generally appli-
cable policy does not resemble the sort of targeting that trig-
gers heightened scrutiny. See, e.g., Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 630, 641 (1994) (applying “heightened …
scrutiny” to statutory provisions requiring “cable operators
to carry the signals of a specified number of local broadcast
No. 25-2025 11
television stations” because they “impose special obligations
upon cable operators”).
The fact that Indiana law permits some friends, family,
and ministers to attend executions does not negate its general
applicability. In Pell, the Supreme Court held that a state pol-
icy prohibiting the media from interviewing inmates did not
discriminate against the press even though the state permit-
ted “family, friends, attorneys, and clergy to visit inmates.”
417 U.S. at 819, 830 n.8. It explained that the press enjoyed the
same rights as the public because “[n]o member of the general
public who does not have a personal or professional relation-
ship to the inmate is permitted to enter the prison and name
an inmate with whom he would like to engage in face-to-face
discourse.” Id. at 830 n.8. The same is true here. Indiana law
permits only certain individuals with pre-existing relation-
ships to the inmate or to the victim to attend executions. Their
presence does not change the fact that Section 35-38-6-6(a)
and Prison Guidance 06-26 treat the press like the general
public.
The plaintiffs beg to differ. They do so by relying on two
recent cases under the Free Exercise Clause for the proposi-
tion that “[a] law … lacks general applicability if it prohibits
religious conduct while permitting secular conduct that un-
dermines the government’s asserted interests in a similar
way.” Fulton v. City of Philadelphia, 593 U.S. 522, 534 (2021); see
also Tandon v. Newsom, 593 U.S. 61, 62 (2021) (similar). The
plaintiffs insist that the same test applies under the Press
Clause. On this view, laws prohibiting media attendance are
not generally applicable if they allow for non-media attend-
ance that undercuts the asserted government interests.
12 No. 25-2025
At a high level of abstraction, importing this definition of
“general applicability” to the Press Clause context has some
appeal. The Supreme Court originally used the term in its free
exercise cases based on analogies to its Press Clause jurispru-
dence. See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hi-
aleah, 508 U.S. 520, 543 (1993) (first citing Cohen, 501 U.S. at
669–70; then citing Minneapolis Star & Trib. Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575, 585 (1983)); Emp. Div., Dep’t.
of Hum. Res. of Or. v. Smith, 494 U.S. 872, 878 (1990) (first citing
Citizen Publ’g Co. v. United States, 394 U.S. 131, 139 (1969); then
citing Grosjean v. Am. Press Co., 297 U.S. 233, 250–51 (1936);
and then citing Minneapolis Star & Trib. Co., 460 U.S. at 581).
But the Supreme Court has yet to extend this relatively
new free exercise definition to the Press Clause context. To the
contrary, it has stated that it applies “for purposes of the Free
Exercise Clause.” Tandon, 593 U.S. at 62. And the definition
itself speaks in terms of “religious conduct” and “secular con-
duct,” Fulton, 593 U.S. at 534, implicitly cabining its scope.
Given this narrow framing, we decline to break new ground
by importing a recently developed free exercise test to the
long-established Press Clause context.
Regardless, the plaintiffs’ proffered definition of the term
“general applicability” does not save their claim. Indiana ex-
plains that it prohibits uninvited press from attending execu-
tions in part out of respect for the dignity of the inmate. Under
the plaintiffs’ definition, that prohibition is not generally ap-
plicable if Indiana allows other people to attend whose pres-
ence similarly threatens the inmate’s dignity. But Indiana in-
vites only a small number of the victim’s immediate family
members and a handful of individuals chosen by the inmate
along with spiritual advisers, doctors, the warden, and those
No. 25-2025 13
facilitating the execution. All of these individuals have some
direct connection to the crime, the inmate, or the procedure.
Their presence does not “undermine[]” the dignity or solem-
nity of the occasion. Fulton, 593 U.S. at 534. Indiana’s policy is
therefore generally applicable even under the plaintiffs’ mod-
ified free exercise definition.
***
For these reasons, we AFFIRM the district court’s denial
of the motion for a preliminary injunction.
14 No. 25-2025
JACKSON-AKIWUMI, Circuit Judge, dissenting. A govern-
ment exercises its greatest power when it ends a person’s life.
As I see it, such severe and irreversible punishment on behalf
of “the people” must be observable to comply with the Con-
stitution. Why? Because the First Amendment protects an in-
formed public’s scrutiny of historically open government ac-
tivities. And the Eighth Amendment guarantees a condemned
inmate the right to be free from cruel and unusual punish-
ment.
These independent protections meet in the execution
chamber. There, the government’s authority is at its peak and
so is its accountability to its citizens. Transparency and checks
on government power are essential in this context.
But the public cannot oversee what it cannot observe. It
cannot be sure that executions conform to evolving standards
of decency without eyes in the room. For these reasons, the
Constitution grants the public and the press a qualified right
to access executions that can be overcome only by satisfying
strict scrutiny. And the public’s ability to exercise its right
should not require the condemned inmate to substitute a
friend or relative for a member of the press. My colleagues in
the majority see the issue differently, so I respectfully dissent.
* * *
This case presents a straightforward question: Does the
First Amendment permit Indiana to execute people in the
public’s name but without any public oversight? It does not.
To explain, I begin with a reminder that the First Amendment
was born of the Founders’ desire for an effective self-govern-
ing nation. The Amendment’s right to access certain govern-
ment proceedings is a necessary tool for citizens to remain
No. 25-2025 15
educated about, confident in, and able to discuss government
affairs. Next, I review the Supreme Court’s right-of-access ju-
risprudence, all of which demonstrates that the point of the
right is to maintain the above-mentioned democratic princi-
ples and to allow for public scrutiny. In reviewing this juris-
prudence, I also highlight the consensus among the courts of
appeals that the Court’s framework, which uses experience
and logic to decide which proceedings the public has the right
to access, applies beyond the criminal context from which it
originated. Then, I clarify that the Supreme Court’s prison ac-
cess cases, which support deference to prison administrators,
do not control the analysis. Finally, I apply the experience-
and-logic framework to this case. That framework confirms
that the Constitution protects the right of the public and the
press to access executions.
I. America’s Founding Principles
The Founders designed our system of government with
England’s oppressive and tyrannical rule in mind. The Decla-
ration of Independence para. 2 (U.S. 1776) (“The history of the
present King of Great Britain is a history of repeated injuries
and usurpations, all having in direct object the establishment
of an absolute Tyranny over these States.”). They adopted the
Bill of Rights to establish that “certain subjects”—life, liberty,
property, and speech—are outside of government discretion
and the election process. W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 638 (1943). Instead, these subjects are “legal prin-
ciples to be applied by the courts.” Id.
The First Amendment prohibits the government from im-
plementing any law “abridging the freedom of speech, or of
the press.” U.S. Const. amend. I; Gitlow v. New York, 268 U.S.
652, 666 (1925) (extending the prohibition to the states). The
16 No. 25-2025
Supreme Court has explained that free speech includes “more
than self-expression; it is the essence of self-government.”
Garrison v. Louisiana, 379 U.S. 64, 75 (1964). “[S]peech concern-
ing public affairs,” then, is paramount under the First Amend-
ment and includes the related right to receive information es-
sential to informed debate. Id. at 74. 1
Logistical and time constraints, however, routinely limit
the public’s ability to access information directly. 2 In those cir-
cumstances, the media functions as a “surrogate[]” to ensure
the public remains educated about government affairs. 3 To
support that function, the Constitution guarantees the press a
qualified right to obtain newsworthy information. 4 The Court
has explained that whether the press’s right is “a right of ac-
cess, or a right to gather information,” is irrelevant because
1 See also Mills v. Alabama, 384 U.S. 214, 218 (1966) (“Whatever differences
may exist about interpretations of the First Amendment, there is practi-
cally universal agreement that a major purpose of that Amendment was
to protect the free discussion of governmental affairs.”).
2 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–73 (1980) (“In-
stead of acquiring information about trials by firsthand observation or by
word of mouth from those who attended, people now acquire it chiefly
through the print and electronic media.”).
3 Press-Enter. Co. v. Superior Ct. of Cal., 464 U.S. 501, 507 (1984) (Press-En-
terprise I) (recognizing that open criminal trials “gave assurance to those
not attending trials that others were able to observe the proceedings and
enhanced public confidence”).
4 Richmond Newspapers, 448 U.S. at 575–76 (“[T]he First Amendment goes
beyond protection of the press and the self-expression of individuals to
prohibit government from limiting the stock of information from which
members of the public may draw . . . In a variety of contexts th[e Supreme]
Court has referred to a First Amendment right to ‘receive information and
ideas.’”).
No. 25-2025 17
“without some protection for seeking out the news, freedom
of the press could be eviscerated.” Richmond Newspapers, 448
U.S. at 576 (citation modified). And that outcome would be
unacceptable, for “the forefathers did not trust any govern-
ment to separate the true from the false for us.” Thomas v. Col-
lins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).
It follows that the enumerated First Amendment rights to
free speech and a free press include an inherent right to access
government proceedings. Richmond Newspapers, 448 U.S. at
579–80. But the right is not absolute. States may overcome the
right by showing “closure [of a proceeding] is essential to pre-
serve higher values and is narrowly tailored to serve that in-
terest.” Press-Enter. Co. v. Superior Ct. of Cal. for Riverside Cnty.,
478 U.S. 1, 9 (1986) (Press Enterprise II) (citation omitted). In
other words, states must satisfy strict scrutiny review. In ad-
dition, the right does not entitle the press to any access greater
than the public. The press’s ability to gather newsworthy in-
formation is, at most, coextensive with the public’s general
right to access the proceeding. 5 This qualified right of access
is at the core of this case.
II. Right-of-Access Jurisprudence
A. The Supreme Court’s Right-of-Access Cases
To date, the Supreme Court has recognized a First Amend-
ment right of the public to access criminal trials and related
proceedings. See Press Enterprise II, 478 U.S. at 11–12. However,
because the Court defines rights by deciding issues presented
5 Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“It has generally been held
that the First Amendment does not guarantee the press a constitutional
right of special access to information not available to the public gener-
ally.”).
18 No. 25-2025
to it, we cannot assume that the right is limited to those pro-
ceedings. Rather, for guidance on what other types of pro-
ceedings might qualify, we must look to the Court’s justifica-
tion for recognizing the right of access across its cases. Such a
review shows that the Court determined the public’s First
Amendment right to access criminal proceedings was neces-
sary to ensure a functioning democracy and to protect other
constitutional rights, namely, those guaranteed by the Sixth
Amendment. With that context, I see the right to access crim-
inal proceedings as a subset of the First Amendment right of
access, not the totality of the constitutional right.
The Supreme Court’s jurisprudence illustrates this princi-
ple. The Court first recognized a First Amendment right of ac-
cess to criminal trials in Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 575. There, after a series of mistrials, the trial
judge granted the defendants’ request to close the courtroom
to the public and press. Id. at 559–60. The Supreme Court re-
versed:
We hold that the right to attend criminal trials is
implicit in the guarantees of the First Amend-
ment; without the freedom to attend such trials,
which people have exercised for centuries, im-
portant aspects of freedom of speech and of the
press could be eviscerated.
Id. at 580. In reaching its holding, the Court considered several
factors, including: the tradition of openness of criminal trials
throughout American and English history; public confidence
in the justice system; the nexus between openness and fair-
ness; the goal of discouraging perjury, misconduct, and bias;
and the therapeutic collective value of open justice. Id. at 569–
71.
No. 25-2025 19
Next, in Globe Newspaper Co. v. Superior Court, the Court
considered a state statute that mandated exclusion of the
press and public from courtrooms during testimony by un-
derage sexual assault victims. 457 U.S. 596, 598, 602 (1982).
The Court announced that the First Amendment right of ac-
cess is not limited to proceedings explicitly mentioned in the
Constitution. Id. at 604. Rather, the right is “broad enough to
encompass those rights that … are nonetheless necessary to
the enjoyment of other First Amendment rights.” Id.
The Court emphasized once again that a constitutional
right of access makes sense given that criminal trials had tra-
ditionally been open to the public. Id. at 605. The Court also
highlighted several reasons public access helps government
and society to function. Id. at 606. First, public scrutiny of tri-
als benefits the defendant and society by “enhanc[ing] the
quality and safeguard[ing] the integrity of the factfinding pro-
cess.” Id. Second, access heightens public respect for the judi-
cial process by fostering an appearance of fairness. Id. Third,
allowing the public to participate in the trial process serves as
a check on the government that is essential to our democracy.
Id.
Later, in Press-Enterprise Co. v. Superior Court (Press Enter-
prise I), the Court held that the First Amendment guarantees
the public access to voir dire examinations of potential jurors.
464 U.S. 501, 508–09 (1984). In that case, the trial judge denied
the press’s request to access individual voir dire on the
grounds that press presence would cause a lack of candor in
juror responses. Id. at 503. Although the press was granted ac-
cess to general voir dire, in practice that meant the press ob-
served only three days of the six-week voir dire process. Id.
The Court ruled that excluding the press from voir dire was
20 No. 25-2025
unconstitutional because the juror selection process had tra-
ditionally been open to the public. Id. at 505–08. According to
the Court, the open process: enhanced public confidence be-
cause those unable to attend were assured that others could
monitor the process; allowed for witness testimony to support
a future argument by either party about deficiencies in the
process; enhanced the fairness of the trial process and the ap-
pearance of fairness to the public; and provided an outlet—
“community therapeutic value”—for citizens’ reactions to the
defendant’s offense. Id. at 508–10.
Two years later, in Press Enterprise II, the Court held that
the press has a First Amendment right of access to transcripts
of preliminary hearings in criminal cases. Id. at 13. There, the
magistrate judge barred public access to the preliminary hear-
ing at the defendant’s request based on concerns about the
defendant’s right to a fair trial. Id. at 4. The Court declared the
closure unconstitutional absent judicial findings of a compel-
ling need to overcome the presumption of openness. Id. at 13–
14. Again, the Court looked to the historical openness of pre-
liminary hearings and their similarities to criminal trials. Id.
at. 10–11. The Court also found that public access enhances
fairness, discourages corruption and misconduct by the judge
and prosecution, promotes confidence in the process, and aids
the public in understanding the criminal justice system. Id. at
12–13. The Court even noted that “the First Amendment ques-
tion cannot be resolved solely on the label we give the event,
i.e., ‘trial’ or otherwise.” Id. at 7.
Press-Enterprise II cemented the experience-and-logic frame-
work for evaluating whether the public has a First Amendment
right of access to a proceeding. However, the Court applied
similar reasoning across all four cases. Each time, the Court
No. 25-2025 21
focused on the rights of and benefits to the public, demon-
strating that the right of access does not depend on the gov-
ernment’s or defendant’s preferences. Each time, the Court re-
flected on First Amendment principles of government ac-
countability and transparency as well as public confidence
and oversight. The Court grounded all four cases in these
principles, not in the characteristics of the proceedings. Col-
lectively, then, these cases show that the public’s right to ac-
cess criminal proceedings is rooted in First Amendment prin-
ciples, not that the First Amendment right of access is limited
to the proceedings in those cases.
B. Appellate Courts’ Application of Press Enterprise II
Decisions from the federal courts of appeals support this
view. Many courts have applied the experience-and-logic test
outside of criminal proceedings. See Courthouse News Serv. v.
Brown, 908 F.3d 1063, 1069 (7th Cir. 2018) (collecting cases);
Dhiab v. Trump, 852 F.3d 1087, 1099 (D.C. Cir. 2017) (Rogers,
J., concurring) (collecting cases). 6
Further, several of our sister circuits have interpreted Rich-
mond Newspapers and its progeny to create a right to access
proceedings that are essential for an informed democracy. For
example, one circuit applied the test to an administrative civil
infraction proceeding, concluding that the Court’s right-of-ac-
cess cases “focus not on formalistic descriptions of the government
proceeding but on the kind of work the proceeding actually does
6 See also 1 LEE LEVINE ET AL., NEWSGATHERING AND THE LAW § 12.05 at 1
(4th ed. 2011) (“Other proceedings to which the public generally has been
afforded access include meetings of university governing boards, unem-
ployment compensation hearings, coroner’s inquests, and the meetings of
judicial nominating commissions.”).
22 No. 25-2025
and on the First Amendment principles at stake.” N.Y. Civ. Liber-
ties Union v. N.Y. City Transit Auth., 684 F.3d 286, 299, 304–05
(2d Cir. 2012). Two other circuits have applied the test to im-
migration deportation proceedings. See Detroit Free Press v.
Ashcroft, 303 F.3d 681, 694–95 (6th Cir. 2002); N. Jersey Media
Grp., Inc. v. Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002). Yet an-
other has applied the test to executions, as we are asked to do
here. Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 876–77
(9th Cir. 2002).
To be sure, there is disagreement about how far the expe-
rience-and-logic framework—and therefore the First Amend-
ment right of access—reaches. See, e.g., N. Jersey Media Grp.,
308 F.3d at 201 (stating that it is “open to debate as a theoret-
ical matter” whether the experience-and-logic test applies to
immigration proceedings). However, all circuits that have ad-
dressed the issue agree the test applies beyond the criminal
context. See Courthouse News Serv., 908 F.3d at 1069 (collecting
cases).
Our circuit has held that the Supreme Court’s rationale in
its right-of-access cases applies equally to civil cases. Id. From
that, my colleagues in the majority suggest that the right be-
gins and ends at the courthouse. Supra at 4. To be fair, our
court previously observed that the Supreme Court has only
applied the test to proceedings “related to the judicial pro-
cess.” Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 947
(7th Cir. 2015) (summarizing the Supreme Court’s right-of-ac-
cess holdings in a case about public access to driving records).
Our court also previously stated that Press Enterprise II pro-
vides “the framework for analyzing restrictions on the press’s
right of access to court proceedings and documents.” Court-
house News Serv., 908 F.3d at 1070. But, until today’s decision,
No. 25-2025 23
we had never explicitly limited the test to judicial proceed-
ings. Notably, the Supreme Court has never expressed such a
limitation, and the majority opinion does not explain how the
principles derived from the Court’s jurisprudence support
one.
III. The Supreme Court’s Prison Access Cases
The majority opinion does not grapple with our founding
principles, the First Amendment’s broad reach, or our sister
circuits’ application of the Supreme Court’s experience-and-
logic framework beyond judicial proceedings. Instead, the
majority opinion spotlights the Court’s holding that “news-
men have no constitutional right of access to prisons or their
inmates beyond that afforded the general public.” Supra at 10
(citing Pell v. Procunier, 417 U.S. 817, 834 (1974)). The message
I take from that is the history of public access to executions
and the principles supporting that access are irrelevant be-
cause the public and the press do not have a constitutional
right to access prisons. Id. at 7–8. Indiana made a similar ar-
gument in its brief—that the administration of capital punish-
ment on prison grounds alone is enough to show no First
Amendment right of access to executions exists. State Offi-
cials’ Br. at 10, 13, 15, 18.
In my view, that position is based on the flawed premise
that the public has no right to access prisons generally and the
Media Coalition seeks special “press only” access in this case.
See Oral Argument at 15:00. The Supreme Court has not held
that the press has no constitutional right to access prisons gen-
erally; it has held that the press is not entitled to access be-
yond that afforded to the public. Here, members of the Media
Coalition do not seek access beyond what the First Amend-
ment guarantees the public. Rather, they seek to exercise their
24 No. 25-2025
rights as members of the public. 7 Thus, that the press does not
have a greater right of access than the public is of no moment
here.
In addition, even if the Supreme Court had held that the
public and press do not have any constitutional right to access
prisons to observe individuals serving their sentences (which
it has not), that holding would not nullify a constitutional
right to attend executions held at prisons. That result could
follow only based on a false equivalence between prison sen-
tences and executions. The two are materially different.
Prison sentences are served over a period and therefore
theoretically allow for documentation and correction of is-
sues. Because of the length of prison sentences, the public can
learn of any problems within the prison from inmates’ com-
munications. By contrast, executions occur once, are irreversi-
ble, and the condemned inmate cannot document his com-
plaints. In those situations, direct access by impartial individ-
uals is necessary to ensure that accurate, neutral accounts of
the execution reach the public. That reality shows why we
cannot analogize the public’s limited access to Indiana State
Prison to its lack of access to Indiana executions.
Comparing the Media Coalition’s request to access Indi-
ana executions to the access sought in the Supreme Court’s
prison access cases—Pell, 417 U.S. 817; Saxbe v. Washington
7 Media Coalition’s Br. at 24 (“Through their action, the Media Coalition
seeks access to executions in Indiana to ensure that the public is informed
on a government proceeding of the highest import.”); 15 (stating that
members of the press are members of the public), 23 (stating this case dif-
fers from Pell and Houchins because the press does not seek an additional
right of access beyond the public’s), 28 (raising constitutional challenge
based on exclusion of “public observers”).
No. 25-2025 25
Post Co., 417 U.S. 843 (1974); and Houchins v. KQED, Inc., 438
U.S. 1 (1978)—reveals additional shortcomings. Namely that
Indiana does not guarantee the public and press any access to
executions, and Indiana expressly takes issue with the press’s
desire to witness executions to report on them.
First, in each of the prison access cases, the government
guaranteed the public and press some access to the prisons. In
Pell and Saxbe, the policies permitted the press to communi-
cate with inmates via written correspondence; interview ran-
domly selected inmates; and tour the institution (along with
the public) and interview any inmate they encountered. Pell,
417 U.S. at 830–31; Saxbe, 417 U.S. at 847–48. Similarly, alt-
hough the press and public had “limited access to the jail” in
Houchins, the policy there allowed the press to attend monthly
pre-scheduled tours. Houchins, 438 U.S. at 4–5. In each case,
the Court upheld the prisons’ policies denying the press face-
to-face interviews with designated inmates. But, each time, it
recognized that the prison administrators provided the press
opportunities to obtain the information it sought—the in-
mates’ account of their experiences and prison conditions—
through alternative means.
Unlike the policies challenged in the Court’s prison access
cases, Indiana State Prison’s policy does not guarantee the
public or press any access to executions. Instead, it leaves the
public’s and press’s ability to enter the execution chamber to
the discretion of the condemned inmate. This means the press’s
constitutionally protected role of reporting information to aid
public oversight is in one person’s hands, without any alternative
guaranteed by the government. That fact distinguishes this case
from the prison access cases.
26 No. 25-2025
There is a second difference between this case and the
prison access cases. Each prison access case recognized that
the challenged rule was not a means to interfere with First
Amendment rights but rather an acceptable restriction ad-
vancing penological goals. Pell, 417 U.S. at 830–32; Saxbe, 417
U.S. at 848–49; Houchins, 438 U.S. at 5–6. Indeed, the Court
upheld each restriction at issue because it furthered safety
and security goals, such as the need to avoid violence among
inmates when those selected for press interviews achieve ce-
lebrity status within the prison. See, e.g., Pell, 417 U.S. at 831–
32. By contrast, during oral argument in this case, Indiana
took issue with the Media Coalition’s request for “access to
the Indiana State Prison to gather information to report on In-
diana executions.” Oral Argument at 15:00. The State insisted
that “what [the press] cannot do is be their own primary
source of the information.” Oral Argument at 25:40. And the
State explicitly distinguished the press from other potential
witnesses based on the press’s reporting function. Because In-
diana has placed the press’s constitutionally protected activ-
ity at issue here, the prison access cases are inapposite.
The principles derived from Pell, Saxbe, and Houchins are
not that the public’s and press’s First Amendment rights are
nullified at prisons. Rather, those cases show that when as-
sessing right to access claims, courts must balance prison ad-
ministrative goals against First Amendment rights and any al-
ternative means of protecting those rights. That is, those cases
demonstrate the unremarkable proposition that the public
and press do not have a First Amendment right to unfettered
access to prisons and their access can be limited by prison ad-
ministrators.
No. 25-2025 27
None of those cases preclude the challenge here. They did
not require the Supreme Court to consider whether the First
Amendment guarantees the public a limited right to access
prisons for a specific purpose like witnessing executions.
They also did not require the Court to answer the broader
question of whether the Constitution guarantees the public
any right to access prisons.
The Court’s prison access jurisprudence therefore does not
compel a finding that the public loses its First Amendment
right to access a government proceeding simply because the
proceeding is moved onto prison grounds. Such a rule would
permit governments to circumvent public scrutiny by moving
historically open proceedings to locations not traditionally
open to the public. If access to a proceeding is guaranteed by
the First Amendment, the venue the government chooses can-
not void the constitutional protection.
Indiana chose to move executions to its state prison. The
State’s decision alone cannot force the conclusion that no con-
stitutional right of access exists. Nor can it justify the violation
of any such right. Therefore, we must apply the experience-
and-logic test to determine whether the public has a right to
access Indiana executions, wherever they may take place.
IV. Experience-and-Logic Framework
The Supreme Court has applied the experience-and-logic
test to determine whether the First Amendment guarantees a
right of public access to any given government proceeding.
The experience prong considers whether the proceeding has
“historically been open to the press and general public.” Press
Enterprise II, 478 U.S. at 8. The logic prong assesses “whether
public access plays a significant positive role in the
28 No. 25-2025
functioning of the particular process in question.” Id. As I dis-
cuss below, executions satisfy both prongs.
A. Experience
Everyone in this case agrees that executions in England
and colonial America were conducted in public squares and
open to anyone who desired to attend. Everyone also agrees
that, at some point during the nineteenth century, states started
to execute people outside the general public’s view, in prisons
or behind enclosures. From this, Indiana and the majority
opinion conclude that the public lost any right of access it may
have had when executions were moved from communal
spaces. The Media Coalition disagrees and argues that, in
most states, members of the media and the public are invited
by the government to attend executions and thus the public
never lost access to executions.
A glimpse into history is necessary to resolve this dispute.
Beginning in the 1830s, many states moved their executions
from open communal spaces to private enclosures. See John
D. Bessler, Televised Executions and the Constitution: Recognizing
A First Amendment Right of Access to State Executions, 45 Fed.
Comm. L.J. 355, 360 (1993). Some say that states moved exe-
cutions outside of the general public’s view in response to a
growing movement to abolish capital punishment because of
its barbarity. Id. Others posit that the move occurred to protect
the decency of the proceedings in response to a growing pub-
lic perception of executions as spectacles. Dane A. Drobny, Note,
Death TV: Media Access to Executions Under the First Amendment, 70 Wash.
U. L.Q. 1179, 1192 (1992). Whatever the true reason, I have found
no evidence that executions were moved in response to any
state’s desire to limit transparency or the public’s forfeiture of
its right to witness the executions.
No. 25-2025 29
In fact, historical accounts indicate that the public retained
a right of access even as more states enacted privacy statutes.
Bessler, supra, at 368–70. Some states explicitly provided for
press access to private executions. Id. at 369–70. Many states
provided for members of the public, generically referred to as
“respectable citizens,” to attend in addition to the condemned
person’s invitees. Id. at 369. Others allowed both groups to at-
tend. Id. at 369–70. That practice continues today. Indeed, the
vast majority of the executions conducted in modern times
have been witnessed by members of the public or the press.
See Deborah W. Denno, When Legislatures Delegate Death: The
Troubling Paradox Behind State Uses of Electrocution and Lethal
Injection and What It Says About Us, 63 Ohio St. L.J. 63, 106
(2002) (“The majority of state protocols allow for media wit-
nesses at lethal injection executions.”); id. at app. 1 tbl. 18.
In recent years, the known exceptions to this general prac-
tice have occurred in only one state (Indiana), see post at 21–
25, or because of an inadvertent failure in the process in other
states. See, e.g., Jolie McCullough, For the First Time in More
Than 40 Years, Media Were Not Allowed to Witness a Texas Execu-
tion, Tex. Trib. (May 20, 2021, 2:16 PM), https://www.texastrib-
une.org/2021/05/20/texas-quintin-jones-execution-media/.
Thus, most executions around the country are observed by
witnesses who serve as surrogates for the public, ensuring
visibility into executions and oversight of the government’s
exercise of supreme authority. See Woodford, 299 F.3d at 876
(recounting the history of public access to executions).
This nationwide practice reflects a tradition of public ac-
cess to witness executions. As the Ninth Circuit observed,
“[t]hat only select members of the public attend does not
erode the public nature of executions—these official witnesses
30 No. 25-2025
act as representatives for the public at large.” Id. (citing Rich-
mond Newspapers, 448 U.S. at 573) (noting that people now ac-
quire information about trials chiefly through the media ra-
ther than firsthand and validating the media’s claim that it
functions as a “surrogate[] for the public”). So, although the
majority opinion may be correct that the masses “stopped at-
tending [executions] because states passed laws prohibiting
them from doing so,” supra at 8, we cannot ignore the role of
public representatives (in the form of the press and “respect-
able citizens”) in our analysis.
What’s more, the fact that Indiana has not guaranteed
press or public access to its executions in decades does not
negate the tradition of access I outlined above. El Vocero de
P.R. (Caribbean Int'l News Corp.) v. Puerto Rico, 508 U.S. 147,
150 (1993) (“[T]he ‘experience’ test of Globe Newspaper does
not look to the particular practice of any one jurisdiction, but
instead ‘to the experience in that type or kind of hearing
throughout the United States ….’”) (citation omitted). Execu-
tions therefore satisfy the experience prong.
The answer is the same even if we limit our analysis to the
founding era. The Supreme Court has advised that, when as-
sessing constitutional rights, courts should evaluate history
and tradition based on the norms at the time an amendment
was ratified. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597
U.S. 1, 34 (2022) (“[W]hen it comes to interpreting the Consti-
tution, not all history is created equal. Constitutional rights
are enshrined with the scope they were understood to have
when the people adopted them.”) (emphasis in original) (citation
modified). Even with this lens, the Media Coalition should
prevail. As indicated above, executions were communal activ-
ities when the First Amendment was ratified in 1791. See
No. 25-2025 31
Bessler, supra, at 360. By the time the Fourteenth Amendment
extended the First Amendment to the states in 1898, some
states had started conducting private executions, but most
continued the public practice. Id. at 363. No matter the ap-
proach, executions satisfy the experience prong.
B. Logic
The logic prong assesses “whether public access plays a
significant positive role in the functioning of the particular
process in question.” Press Enterprise II, 478 U.S. at 8. The Me-
dia Coalition maintains that public access to executions plays
a positive role by promoting accountability, public confidence,
and informed debate about capital punishment. The Coalition’s
arguments largely mirror the Supreme Court’s rationale for
holding that public access plays a positive role in criminal
proceedings. As I discuss below, the Court’s reasoning ap-
plies with equal force to executions.
Public access to executions promotes accuracy and gov-
ernment accountability. The presence of live, neutral wit-
nesses serves as a check and balance on the government as it
ends a person’s life. It helps incentivize government officials
to adhere to standards of decency and reveal any issues that
occur during an execution. Indeed, without public oversight,
states would have little incentive to reveal flaws in the pro-
cess. Thus, just as the right to access criminal proceedings
safeguards a defendant’s right to a fair trial, access to execu-
tions protects a condemned person’s right not to be subjected
to cruel and unusual punishment.
Relatedly, public access enhances public confidence in the
legitimacy of the execution process. Citizens are less likely to
harbor distrust and skepticism of a transparent process. Press
32 No. 25-2025
Enterprise I, 464 U.S. at 508 (“Openness thus enhances both the
basic fairness of the criminal trial and the appearance of fair-
ness so essential to public confidence in the system.”).
Finally, reported witness accounts enable informed public
discourse. Capital punishment remains a highly contested is-
sue. Meaningful debate requires education and accurate in-
formation.
Considerations specific to executions further demonstrate
the importance of public access and oversight. Twenty-seven
states and the federal government permit capital punishment.
State by State, Death Penalty Info. Ctr., https://deathpenal-
tyinfo.org/state-and-federal-info/state-by-state (last visited
May 8, 2026). Of those twenty-seven states, four states are cur-
rently subject to moratoriums and therefore not executing an-
yone on death row. Id. Of the remaining twenty-three states,
only two—Indiana and Wyoming—do not guarantee the press
access to executions. See Wyo. Stat. § 7-13-908. But Wyoming
conducted its last execution in 1992 and does not have any
prisoners on death row. 8 Indiana on the other hand has exe-
cuted three people since December 2024 and currently has
five people awaiting execution. 9 Indiana is therefore the only
state with an active death row that does not guarantee the
public or press access to its executions. Id.
8 State by State: Wyoming, DEATH PENALTY INFO. CTR., https://deathpenal-
tyinfo.org/state-and-federal-info/state-by-state/wyoming (last accessed
May 8, 2026).
9 Casey Smith, Indiana’s Death Row Dwindles to Five — And Future Execu-
tions Remain Uncertain, IND. CAP. CHRON. (Oct. 20, 2025, 7:00 AM),
https://indianacapitalchronicle.com/2025/10/20/indianas-death-row-
dwindles-to-five-and-future-executions-remain-uncertain/.
No. 25-2025 33
Indiana justifies its practice as necessary for the dignity of
condemned inmates. State Officials’ Br. at 30. At oral argu-
ment, Indiana invoked the Eighth Amendment in support of
its position that constitutional standards of decency require
secrecy during executions. Oral Argument at 19:40. According
to Indiana, our nation’s capital punishment regime evolved as a
means of honoring the dignity of condemned persons and protect-
ing them from spectacle. However, neither the Supreme Court
nor any court of appeals has held that the Eighth Amendment
requires secrecy during executions. And, as I have explained,
the history on why executions were moved from public squares is
inconsistent. See Drobny, supra, at 1191–92. Modern accounts
refute Indiana’s position and provide support for the Media
Coalition’s opposite contention: public access is necessary to
ensure compliance with the Eighth Amendment’s “evolving
standards of decency.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
The story of what has happened with lethal injections
proves this point. Lethal injection is the most common execu-
tion method in America—and the only method used by Indi-
ana. States moved toward lethal injection believing it to be the
most humane execution method. Baze v. Rees, 553 U.S. 35, 42
(2008). For the past two decades, however, media witnesses
around the country have exposed flaws in execution proce-
dure and executions that lacked dignity. Specifically, they
have reported instances where it appeared the first drug in
the typical three-drug protocol did not render the person un-
conscious before the killing continued. 10 Here are examples:
10 Most states use a three-drug protocol pursuant to which the first drug
renders the condemned unconscious, the second stops respiration by par-
alyzing the condemned’s diaphragm, and the third induces cardiac arrest.
Id. at 44. “The proper administration of the first drug ensures that the
34 No. 25-2025
• John Marion Grant (Oklahoma, October 28, 2021): A
reporter stated “[a]lmost immediately after the drug
was administered, Grant began convulsing, so much so
that his entire upper back repeatedly lifted off the gur-
ney. As the convulsions continued, Grant then began
to vomit. Multiple times over the course of the next few
minutes medical staff entered the death chamber to
wipe away and remove vomit from the still-breathing
Grant.” 11
• Kenneth Williams (Arkansas, April 27, 2017): A re-
porter claimed it was “the most [he’d] seen an inmate
move three or four minutes in[to]” an execution. The
reporter “explained that Williams ‘lurched’ 15 times in
quick succession, followed by five slower lurches, three
minutes after the sedative midazolam was introduced”
and noted that two other media witnesses agreed with
his account.12
prisoner does not experience any pain associated with the paralysis and
cardiac arrest caused by the second and third drugs.” Id. “If all goes as
planned, the entire execution takes about five minutes, with death usually
occurring less than two minutes after the final injection.” Deborah W.
Denno, Lethal Injection, BRITANNICA (updated Mar. 23, 2026), https://www.bri-
tannica.com/topic/lethal-injection.
11 Dan Snyder, A Minute-By-Minute Account of John Grant’s Death As Told
By Witness of Execution, KOKH (Oct. 30, 2021, 12:11 PM),
https://okcfox.com/news/local/a-minute-by-minute-account-of-john-
grants-death-as-told-by-witness-of-execution.
12 Phil McCausland, Arkansas Execution of Kenneth Williams 'Horrifying': Law-
yer, NBC NEWS (Apr. 27, 2017, 3:47 PM), https://www.nbcnews.com/story-
line/lethal-injection/arkansas-executes-kenneth-williams-4th-lethal-injec-
tion-week-n752086.
No. 25-2025 35
• Joseph R. Wood (Arizona, July 23, 2014): A reporter
stated: “Twelve minutes into the execution, everyone
in the witness chamber jumped when Wood convulsed
and exhaled forcefully, his lips pursed as if blowing
smoke rings. Then he did it again. And again. I started
making hash marks on my notebook, counting each
one. Each time the executioner entered the chamber to
check if Wood was conscious, he would turn on the mi-
crophone to tell us he was still sedated. But in the back-
ground, we could hear a loud sucking noise each time
Wood gasped for air . . . We later learned that the exe-
cutioner had injected Wood with 15 doses of what was
supposed to kill him in one. It took nearly two hours.
A normal execution took about 10 minutes, 20 at most.
I had counted 640 gasps.” 13
• Angel Nieves Diaz (Florida, December 13, 2006): Diaz
died 34 minutes after receiving the first of the two le-
thal injection doses administered during his execution.
A media witness reported that Diaz “was alive, his
eyes darting back at 25 witnesses” ten minutes after ex-
ecutioners injected him with the first dose. According
to the report, Diaz “shuddered several times, but con-
tinued moving and breathing for nearly half an hour.” 14
13 Michael Kiefer & Dale Baich, Poorly Executed: 'The Experiment Failed,' Halt-
ing Executions in Arizona, AZ MIRROR (Apr. 27, 2023, 5:00 AM), https://azmir-
ror.com/2023/04/27/poorly-executed-the-experiment-failed-halting-exe-
cutions-in-arizona/.
14 Ron Ward, Minutes Ticked By as Diaz Struggled After Injection, ORLANDO
SENTINEL, Dec. 15, 2006.
36 No. 25-2025
Indiana did not use the three-drug protocol in its recent
lethal injection executions, opting instead for the single-drug
pentobarbital method. 15 Pentobarbital has been the preferred
drug used for animal euthanasia in the United States for dec-
ades. However, the single-drug pentobarbital execution method,
first introduced in 2011, 16 has not been without error. Indeed,
on August 5, 2025, just months after Indiana executed two
people using the same method, Tennessee executed Byron
Black with a single dose of pentobarbital. Media witnesses
noted that he was still awake and groaning in apparent pain
five minutes after the start of the execution, saying,“It hurts
so bad.” They also claimed that he said “I can’t do this” and
“repeatedly lifted his head.” Seven reporters shared similar
accounts of what they witnessed and “unanimous[ly]” con-
cluded that they “saw him in distress.” 17
Public access to executions is also necessary to ensure
oversight as states increasingly experiment with new lethal
injection protocols in response to drug scarcity and cost. Glos-
sip v. Gross, 576 U.S. 863, 869–70 (2015) (recognizing a “practi-
cal obstacle” to lethal injection “emerged, as anti-death-pen-
alty advocates pressured pharmaceutical companies to refuse
15 Casey Smith, What is Pentobarbital? More Questions Than Answers Sur-
round Indiana’s New Execution Drug, IND. CAP. CHRON. (July 5, 2024, 7:00
AM), https://indianacapitalchronicle.com/2024/07/05/what-is-pentobarbi-
tal-more-questions-than-answers-around-indianas-new-execution-drug/.
16 See Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 GEO. L.J.
1331, 1362 (2014).
17 Sam Levin, The Tennessee Execution That ‘Went Horribly Wrong’: How By-
ron Black’s Killing Unfolded, THE GUARDIAN (Aug, 9, 2025, 9:00 AM),
https://www.theguardian.com/us-news/2025/aug/09/byron-black-execu-
tion-tennessee.
No. 25-2025 37
to supply the drugs used to carry out death sentences.”). In-
diana is no exception. The State did not execute anyone from
2009 until 2015, in part because it could not secure the neces-
sary drugs. 18 It eventually obtained substitute drugs and used
its full supply to execute three people in less than a year. 19 To
execute the remaining people on death row, then, the State
may need to revise its protocol. 20
If Indiana does obtain new drugs for lethal injections, pub-
lic oversight of the new protocol would be essential to ensure
the State complies with the Eighth Amendment. This is be-
cause “[t]he execution protocols States hurriedly devise as they
scramble to locate new and untested drugs, are all the more likely
to be cruel and unusual.” Glossip, 576 U.S. at 976 (Sotomayor,
J., dissenting). As such, public scrutiny “should be more, not
less, searching when States are engaged in what is in effect
human experimentation.” Id.
Execution methods other than lethal injection also need
neutral observers. Of the alternatives—firing squads, nitrogen
hypoxia (lethal gas), hanging, and electrocution—none are
foolproof. Here again, media witness accounts prove helpful:
• Mikal Deen Mahdi, Firing Squad (South Carolina,
August 11, 2025): Witnesses reported Mahdi remained
conscious and groaned for nearly a minute after the
shots were fired. A reporter stated: “There was
18 Smith, supra note 16.
19 Smith, supra note 10.
20 Casey Smith, Indiana Lawmakers Tee Up New Death Penalty Bills Ahead of
Short 2026 Session, IND. CAP. CHRON. (Dec. 18, 2025, 6:45 AM), https://indi-
anacapitalchronicle.com/2025/12/18/indiana-lawmakers-tee-up-new-
death-penalty-bills-ahead-of-short-2026-session/.
38 No. 25-2025
certainly some agony in the cries. I can’t tell how much
pain he felt. It’s impossible to say . . . There was agony
in it, certainly.” An autopsy showed bullets missed the
intended target above Mahdi’s heart, striking his liver
and pancreas instead, thereby prolonging his death. 21
• Kenneth Eugene Smith, Nitrogen Hypoxia (Lethal
Gas) (Alabama, January 25, 2024): A reporter’s eyewit-
ness account was that, over the course of ten minutes,
Smith shook “violently, in thrashing spasms and sei-
zure-like movements” for two minutes, which “caused
the gurney to visibly move at least once”; “pulled against
the straps holding him to the gurney”; “lifted his head off
the gurney and then fell back”; and took “a series of deep
gasping breaths, his chest rising noticeably.”22
• Bill Bailey, Hanging (Delaware, January 25, 1996): A
news report detailed Bailey’s eleven-minute execution:
“The trap door opened with a thud and Bailey dropped
10 feet, stopping several feet above the ground. His
body spun at the end of the rope rapidly five or six
21 Alan Hovorka, Mikal Mahdi Killed by Firing Squad for 2004 Shooting,
Burning Orangeburg Officer, P OST AND C OURIER (Apr. 12, 2025),
https://www.postandcourier.com/news/crime/mikal-mahdi-executed-fir-
ing-squad-myers/article_1f5c5fee-8c1f-4322-b5e4-88de805649a5.html;
Chiara Eisner, A Firing Squad Tried to Shoot a Prisoner in the Heart. They Missed, Autopsy
Indicates, NPR (May 8, 2025, 2:41 PM), https://www.npr.org/2025/05/08/nx-s1-
5389846/firing-squad-south-carolina-death-penalty-execution.
22 Kim Chandler, An Eyewitness Account of What Happened at the Nation's 1st Nitrogen
Gas Execution, PBS (Jan. 27, 2024, 6:41 PM), https://www.pbs.org/newshour/na-
tion/an-eyewitness-account-of-what-happened-at-the-nations-1st-nitro-
gen-gas-execution.
No. 25-2025 39
times before halting.” 23 A reporter said that Bailey
showed little emotion and “looked like a ‘rag doll’ after
the gallows door dropped.” 24
• Alpha Otis Stephens, Electrocution (Georgia, Decem-
ber 12, 1984): According to a news report, “[p]rison of-
ficials said one surge of electricity was expected to
carry out the execution order and Stephens was ‘brain
dead’ after the first surge. But witnesses saw Stephens’
fingers move and his head rolled back and forth after
the first surge.” A reporter explained: “It was almost
like he was trying to wake himself up, . . . Then he
started breathing. We counted 23 breaths and they
were deep breaths. It was obvious he was alive.” 25
Without the above media reports, the public would have
remained ignorant about developments in the execution
chamber. Or, they would have been left to rely on the state’s
account (which sometimes contradicts the media’s account)
or after-the-fact interviews of people authorized to attend the
execution. But, again, the Constitution is at issue: “By protect-
ing even those convicted of heinous crimes, the Eighth
Amendment reaffirms the duty of the government to respect
23 Frank Freudberg, Murderer Hanged in Delaware, UPI (Jan. 25, 1996),
https://www.upi.com/Archives/1996/01/25/Murderer-hanged-in-Dela-
ware/4428822546000/.
24 Gary Tuchman, Hanged Murderer Looked Like a "Rag Doll”, CNN (Jan. 25,
1996, 9:40 AM),
https://www.cnn.com/US/9601/delaware_execution/index.html.
25 Cathy Keim, Double-Murderer Alpha Otis Stephens was Executed in Geor-
gia’s Electric Chair, UPI (Dec. 12, 1984), https://www.upi.com/Ar-
chives/1984/12/12/Double-murderer-Alpha-Otis-Stephens-was-executed-
in-Georgias-electric/6160471675600/
40 No. 25-2025
the dignity of all persons.” Glossip, 576 U.S. at 977–78 (So-
tomayor, J., dissenting) (quoting Roper v. Simmons, 543 U.S.
551, 560 (2005)). Without disinterested witness reports, the
public cannot confirm that duty has been fulfilled.
Equally problematic, in executions closed to the public
and press, the courts are left without neutral accounts when
assessing claims related to capital punishment. Press accounts
of prior executions have been referenced in cases brought by
death row inmates to challenge the constitutionality of execu-
tion methods. See, e.g., Frazier v. Hamm, No. 2:24-CV-732-ECM
[WO], 2025 WL 361172, at *6 (M.D. Ala. Jan. 31, 2025) (discuss-
ing media witness observations that an inmate “tightly
clenched his hands, took deep gasps, shook his head vigor-
ously[,] and pulled against his restraints” during a nitrogen
hypoxia execution).
Neutral eyewitness accounts would also be relevant in a
case brought by survivors of a condemned inmate seeking re-
course for errors in the execution process. That is exactly the
issue Benjamin Ritchie’s survivors face today. Indiana put
Ritchie to death last year, and its account is that everything
went fine. Ritchie’s attorneys, who witnessed the execution,
say it was botched. Because the press was excluded, neither
the public nor any future factfinder has an objective account
to assess who is telling the truth. 26
26 Casey Smith, 'Violent' Moment During Indiana Execution Draws Scrutiny;
DOC Officials Deny 'Botched' Process, IND. CAP. CHRON. (May 22, 2025, 7:00
AM), https://indianacapitalchronicle.com/2025/05/22/violent-moment-
during-indiana-execution-draws-scrutiny-doc-officials-deny-botched-
process/.
No. 25-2025 41
Ritchie’s execution is not the first time that Indiana’s ac-
count differed from that of an authorized witness. Following
William Vandiver’s electrocution in 1985, his attorney re-
counted that he “observed smoke and the smell of burning.”
The State admitted only that the execution “did not go accord-
ing to plan.” 27 These conflicting accounts illustrate the utility
of neutral public witnesses such as members of the press.
It is true that Indiana permits certain categories of people
to attend its executions. See Ind. Code § 35-38-6-6(a); see also
supra [Majority Op.] at 2. But friends and relatives of the vic-
tim or the condemned inmate should not bear the burden of
sharing information to ensure government accountability.
Moreover, they should not have an obligation to remain ob-
jective, and neither should any attorney the condemned in-
mate invites to witness the execution. The warden and war-
den’s designees have similar problems. They lack the appear-
ance of impartiality, and ensuring the public and press’s right
to information for accountability purposes is simply not their
job. The same holds true for physicians, spiritual advisors,
and prison chaplains. Accordingly, Indiana’s solution—forc-
ing the press to rely exclusively on information provided by
prison employees, relatives, or friends as they leave the
prison—is wholly wanting.
Indiana’s other solution—permitting the press to attend
only as one of the condemned inmate’s invitees—has other
problems. This scenario, too, can create the appearance of par-
tiality towards the inmate. Even more importantly, the
27 Id.; see Indiana Execution ‘Not According to Plan’, CHI. TRIB. (Oct. 17, 1985),
https://www.chicagotribune.com/1985/10/17/indiana-execution-not-ac-
cording-to-plan/.
42 No. 25-2025
public’s right to monitor the government during such an ex-
treme exercise of power should not be contingent on whether
the condemned person chooses to prioritize the media over
other guests.
All these considerations demonstrate that public and press
access plays a “significant positive role” in the functioning of
executions. Press Enterprise II, 478 U.S. at 8. As Justice So-
tomayor cautioned:
The States may well be reluctant to pull back the
curtain for fear of how the rest of us might react
to what we see. But we deserve to know the
price of our collective comfort before we blindly
allow a State to make condemned inmates pay
it in our names.
Glossip, 576 U.S. at 977 (Sotomayor, J., dissenting). Executions
undisputedly satisfy the logic prong of the Press-Enterprise II
framework.
* * *
To summarize, the Founders designed a self-governing
nation with guaranteed protections of speech, the press, and
access to government proceedings. To date, the Supreme
Court has not determined the extent, if any, of the public’s
right to access executions or even prisons generally. Experi-
ence and logic, however, suggest that the Constitution pro-
tects access to executions. Members of the public or press have
witnessed most of the documented executions in the United
States. And the public’s access to executions plays a positive
role equivalent to the public’s role in criminal proceedings—
a role that the witnesses authorized by Indiana’s statute can-
not fulfill. For these reasons, I would hold that the public and
No. 25-2025 43
press have a qualified right to access executions. I would
therefore vacate the district court’s denial of a preliminary in-
junction and remand for the court to determine, under the
strict scrutiny standard of review, whether Indiana has met
its constitutional burden before it can close executions to the
public. 28
28 There is a second issue in this case: Does Indiana’s policy infringe on
the press’s newsgathering function in violation of the First Amendment’s
Free Press Clause? I agree with the majority’s decision to refrain from ex-
tending Free Establishment caselaw to the Free Press context, as one of the
Media Coalition’s arguments on this score would have us do. But the Co-
alition has a separate Free Press Clause argument based on the “more than
incidental burden” Indiana’s policy has on newsgathering. Media Coali-
tion’s Br. at 48. That argument points to Indiana’s policy that “Media per-
sonnel shall not be permitted to witness the execution or to be in the Exe-
cution Chamber.” Id. at 54–55, 57, A18. Indiana contends that this policy
does not discriminate against members of the press because they can by-
pass the policy if the condemned inmate lists them as invitees. State Offi-
cials’ Br. at 30. That is not the standard. Permitting an exception to a dis-
criminatory policy does not void the discrimination. Rather, discrimina-
tion exists where the press is treated differently because of its newsgath-
ering function. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641–43 (1994)
(explaining that the First Amendment “does not countenance governmen-
tal control over the content of messages expressed by private individuals”
and that the “the mere assertion of a content-neutral purpose [cannot]
save a law which, on its face, discriminates based on content.”). That
standard is met here for two reasons. First, Indiana’s policy explicitly bans
media personnel and no other group. Only the media is expressly singled
out by policy. Second, at oral argument Indiana took issue with the Media
Coalition’s request for “access to the Indiana State Prison to gather infor-
mation to report on Indiana executions.” Oral Argument 15:00. Also at
oral argument, Indiana distinguished the press from statutory witnesses
based on the press’s reporting function. Oral Argument 25:00. As I under-
stand Indiana’s position, it opposes the Media Coalition’s challenge in this
case because the press will gather information to disseminate to the pub-
lic—in other words, because the press will engage in its constitutionally
44 No. 25-2025
V. Conclusion
Until today, neither the Supreme Court nor any federal
court of appeals had declared that the First Amendment right
of access is limited to judicial proceedings. Nor had any court
held that the First Amendment does not grant the public or
press any access to executions. In fact, the only circuit to con-
sider the issue has concluded the opposite. See Woodford, 299
F.3d at 870–71. Our court is the first, and I see great implica-
tions.
By beginning and ending the inquiry at courthouse doors,
our court shields most state and federal executive branch pro-
ceedings (including those of an adjudicatory nature) from
public oversight, thereby granting officials a license to operate
without accountability. This repudiates the First Amend-
ment’s foundations: the Founders recognized that the govern-
ment must be monitored and the people must be informed.
Today’s decision also overlooks that “[w]hen government
begins closing doors, it selectively controls information right-
fully belonging to the people.” Detroit Free Press, 303 F.3d at
683. The decision grants the State the privilege to kill its death
row inmates behind shut doors and beyond reproach, with-
out requiring it to show that closed executions are narrowly
tailored to achieve a compelling state interest. The decision
overlooks that the legitimacy of capital punishment rests on
both the legality and integrity of the execution process.
Indiana executed three people in less than a year—Joseph
Corcoran, Benjamin Ritchie, and Roy Lee Ward. A media
protected reporting function. For these reasons, Indiana’s policy violates
the Free Press Clause and should be subject to heightened scrutiny on this
basis.
No. 25-2025 45
representative witnessed Corcoran’s execution as one of Cor-
coran’s five maximum invited guests. However, the press was
informed of Ritchie’s and Ward’s executions by a note a
prison official placed in the media box outside of Indiana State
Prison after their deaths. Consistent with Indiana’s policy, the
note contained only the State’s account of each man’s time of
death and last words. According to the majority opinion, that
is enough. Because I think our Constitution compels much
more, I respectfully dissent.