San Francisco -- State-inflicted death used to be public theater with didactic purposes, and may be again if KQED, the public television station here, wins its suit asserting a right to film executions.
Reporters have always attended California executions. A press sketch was made of the most recent one, in 1967. But before KQED filed suit, prison policy was changed to require reporters to be empty-handed (no note or sketch pads, tape recorders or cameras). After the suit was filed, the rules were revised again to ban all reporters from any executions.
This comprehensive ban may protect San Quentin's warden against KQED's original contention that he was unconstitutionally discriminating against graphic journalism because of its content. However, the ban opens him to another charge: He is unconstitutionally infringing the newsgathering right by abolishing a historic access to a government function, without serving a compelling government interest.
The First Amendment is not a blanket freedom-of-information act. The constitutional newsgathering freedom means the media can go where the public can, but enjoy no superior right of access. Courts have recently protected press access to government functions when there is a history of openness and when openness would facilitate the function. Journalists claim no right to witness, say, Federal Reserve meetings or Supreme Court conferences. But executions are scripted rituals, not deliberative processes. Every other aspect of California's criminal-justice system -- trials, parole and clemency hearings, press conferences by condemned prisoners -- can be televised.
The warden's real concerns, for the dignity of the occasion and for society's sensibilities, are serious. Solemnity should surround any person's death, and televised deaths might further coarsen American life. There has not been a public execution since 1937 (a hanging in Galena, Missouri). At the time the Constitution was adopted, public executions were morality pageants, featuring civil and clerical orators, designed to buttress order and celebrate justice. But by the 1830s states, alarmed by "animal feelings" aroused by public executions, moved executions behind prison walls, inviting representatives of the proliferating penny newspapers to be society's surrogate witnesses.
KQED says television conveys an "immediacy and reality" that is lost when events are "filtered through a reporter and conveyed only in words." It would be more accurate to say pictures have unique saliency and increasing importance in a decreasingly literate society. (California's Department of Education estimates that one in four California adults is functionally illiterate.) No camera can make capital punishment more troubling than Orwell ("A Hanging," just six pages long) and Camus ("Reflections on the Guillotine") did while working "only in words." Still, KQED could argue that Orwell and Camus are rarities and public understanding should not depend on literary genius being common in journalism.
It is dismaying but undeniable: Most Americans get most of their information, such as it is, from television. But televised )( executions would transmit peculiar "information," and for a problematic purpose. Information is normally valued as nourishment for reason. Many advocates of televised executions hope the horrifying sight would stir revulsion.
Attempts to proscribe capital punishment as unconstitutionally "cruel and unusual" have foundered on two facts: the Founders did not consider it so (the Constitution assumes its use) and society's "evolving standards of decency" have not made it so. Society's elected representatives continue to enact capital punishment.
KQED says it would not exercise a right to broadcast an execution live, or without permission of the condemned. But although a court can affirm the journalistic right KQED asserts, it cannot mandate KQED's scrupulousness. Whether broadcast executions would be in bad taste or excite prurient interests are editorial concerns beyond the proper purview of government.
Televised executions might accelerate the desensitization of America. However, much death has been seen on American television: foreign executions (of the Ceausescus; a Saudi beheading), the Zapruder film of President Kennedy's exploding skull, Robert Kennedy bleeding onto a hotel kitchen floor, the explosion of the shuttle Challenger, Hank Gathers' death on a basketball court. Would tape of an execution be more lacerating to the public's sensibilities than the tape of Los Angeles police beating a motorist nearly to death?
There have been 143 executions since capital punishment was resumed in 1977. They have lost their novelty, hence much of their news value: A recent Texas execution (by lethal injection) did not even draw the permitted number of reporters. Perhaps this distresses those who support capital punishment for its deterrent power. If KQED prevails, publicity will be ample, at least for a while.
However, the dynamics of the public mind, and hence the consequences of a KQED victory, are unpredictable. Perhaps the unfiltered face of coolly-inflicted death would annihilate public support for capital punishment. But perhaps society values capital punishment because of its horribleness, from which flows society's cathartic vengeance. All that is certain is that the constitutionality of capital punishment is linked to the public's values, which are malleable.
;/ George F. Will is a syndicated columnist.