By Jeremy Kohler
St. Louis Post-Dispatch
ST. LOUIS — A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols.
Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.
Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol.
Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.
Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.
Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.”
But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records.
The state had argued that it would be more proper for Flynt to file a separate lawsuit to address the merits of unsealing judicial records; the appeals court panel disagreed. When a party seeks to intervene in a lawsuit only to modify a protective order or unseal documents, and not litigate a claim on the merits, an independent suit is not required.
Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support.
The Missouri Department of Corrections declined to comment through a spokesman.
A spokesman for the state attorney general’s office said it was still reviewing the ruling.
“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.
Three other lawsuits pertaining to execution secrecy are pending in Cole County Circuit Court. In January, Judge Jon Beetem heard the cases, which seek to the release of the name of the supplier that provides Missouri with its execution drugs. The judge has not yet made a decision.
Last year, the Post-Dispatch and four other news organizations — the Associated Press, Kansas City Star, Springfield News-Leader and the U.S. operation of the British newspaper The Guardian — filed a lawsuit after the Department of Corrections denied records requests regarding the drugs, including the supplier. The department said the pharmacy providing the drugs is a member of the execution team, whose identities are confidential under state law.
The news organizations also argue that the department’s refusal to disclose information regarding the drugs violates Missouri’s open record statutes, as well as the First and Fourteenth Amendments to the U.S. Constitution.
Two similar suits were filed: one by Chris McDaniel, a St. Louis Public Radio reporter now with Buzzfeed, the Reporters Committee for Freedom of the Press and the American Civil Liberties Union of Missouri; and the other by Joan Bray, a former Missouri lawmaker.