Seventh Circuit: No Qualified First Amendment Right for Press or Public to Witness State Executions Absent Historical Openness

I. Introduction

Associated Press, et al. v. Ron Neal and Lloyd Arnold (7th Cir. June 5, 2026) addresses whether Indiana’s execution-witness regime violates the First Amendment by effectively barring media access unless a condemned inmate affirmatively invites journalists as part of a limited guest list.

Indiana law limits execution witnesses to enumerated categories, including up to five persons invited by the inmate; the Department of Correction’s guidance expressly provides that “[m]edia personnel shall not be permitted to witness the execution” unless included on that list. Media entities sued under 42 U.S.C. § 1983 for declaratory and injunctive relief, asserting two as-applied First Amendment theories:

  • A qualified right of access claim, invoking the Supreme Court’s “experience and logic” framework associated with Press-Enter. Co. v. Super. Ct., 478 U.S. 1 (1986) (Press-Enterprise II).
  • A Press Clause discrimination claim, alleging Indiana “unfavorably singl[es] out” the media.

The district court denied a preliminary injunction. The Seventh Circuit affirmed, holding that plaintiffs failed to show a likelihood of success on either claim.

II. Summary of the Opinion

The majority (Judge Scudder) affirmed denial of preliminary relief on two central conclusions:

  1. The Press-Enterprise II “experience and logic” framework is doubtful in this context because executions “do not resemble a court proceeding,” and, even if the framework applies, executions fail the experience prong because they have not “historically been open to the press and general public” for over a century.
  2. Indiana’s scheme does not violate the Press Clause because it is generally applicable and treats the press the same as the general public: neither can attend unless they fit within the statute’s categories (including inmate invitation).

The court expressly disagreed with the Ninth Circuit’s decision in California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), creating a circuit split; the opinion was circulated under 7th Cir. R. 40(e), and no judge favored en banc rehearing.

III. Analysis

A. Precedents Cited

1. The access-doctrine backbone: Press-Enterprise II and its line

The majority grounded the access claim in the Supreme Court’s judicial-proceedings access cases—especially Press-Enter. Co. v. Super. Ct., 478 U.S. 1 (1986) (Press-Enterprise II), which identifies two complementary considerations: whether the process has historically been open (“experience”) and whether openness plays a significant positive role (“logic”). The opinion also relied on the Court’s companion line:

  • Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality opinion) (openness of criminal trials).
  • Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982) (qualified right of access to criminal trials, including certain testimony).
  • Press-Enter. Co. v. Super. Ct., 464 U.S. 501 (1984) (Press-Enterprise I) (voir dire access).

Critically, the Seventh Circuit read these cases as focused on “traditional aspects of criminal proceedings,” reinforcing its skepticism about extending the doctrine to executions.

2. Seventh Circuit access precedents: “court proceedings” and records

The court emphasized its own consistent application of access doctrine to adjudicatory contexts and related documents:

  • Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937 (7th Cir. 2015) (limited right of access recognized for proceedings “related to the judicial process”).
  • Courthouse News Serv. v. Brown, 908 F.3d 1063 (7th Cir. 2018) (First Amendment right of access extends to civil proceedings and associated records).
  • In re Associated Press, 162 F.3d 503 (7th Cir. 1998), and Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) (public’s right of access to court proceedings and documents).
  • United States v. Eppinger, 49 F.3d 1244 (7th Cir. 1995) (values served by openness: checking judges/litigants, accuracy).

These cases functioned as boundary markers: the majority treated executions as outside “the adjudicative process” and thus outside the core rationale of courtroom access.

3. “Experience” and nationwide practice: historical and comparative citations

To define the relevant historical inquiry, the court cited El Vocero de Puerto Rico (Caribbean Int'l News Corp.) v. Puerto Rico, 508 U.S. 147 (1993), for looking to experience “throughout the United States.” It then relied on sources and judicial observations to show a long trend away from public executions:

  • Scholarly accounts cited in the opinion (e.g., John D. Bessler; Dane A. Drobny) describing the 19th-century shift to private executions.
  • Furman v. Georgia, 408 U.S. 238 (1972) (Marshall, J., concurring; Brennan, J., concurring) on the decline of public execution spectacles.
  • PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013), cited for the conclusion that history shows a “decided and long-standing trend away from openness.”

The court confronted the Ninth Circuit’s contrary conclusion in California First Amendment Coalition v. Woodford, which found that “limited public access” sufficed. The Seventh Circuit rejected that reasoning as improperly equating a move to private executions (driven by legal closure) with mere “decreased attendance” at still-open criminal trials discussed in Richmond Newspapers, Inc. v. Virginia.

4. “Logic” and the caution against logic-only rights

On the logic prong, the majority acknowledged plaintiffs’ argument that scrutiny may promote competence and humanity, but invoked N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), for the proposition that the analysis must consider potential harms. The court then leaned on:

  • N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), and In re Reps. Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (majority opinion by Scalia, J.), to support the view that “logic” alone cannot create a right where history is “ambiguous or lacking.”

5. Press Clause and generally applicable laws

For the Press Clause claim, the court emphasized a well-established baseline: the First Amendment does not grant the press special access beyond the public.

  • Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (generally applicable laws do not offend the First Amendment simply because they incidentally affect newsgathering).
  • Branzburg v. Hayes, 408 U.S. 665 (1972) (no “special access” right for the press).
  • Pell v. Procunier, 417 U.S. 817 (1974) (no constitutional right of access to prisons or inmates beyond that afforded the general public).
  • Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (example of heightened scrutiny where law imposes special obligations targeting a media industry).

The court used Pell v. Procunier to rebut the “exceptions defeat general applicability” argument: allowing access for those with pre-existing relationships (family, attorneys, clergy) does not amount to singling out the press when the same limitation applies to all unconnected members of the public.

6. Rejection of importing Free Exercise “general applicability” tests

Plaintiffs urged a “general applicability” approach akin to Free Exercise cases: Fulton v. City of Philadelphia, 593 U.S. 522 (2021), and Tandon v. Newsom, 593 U.S. 61 (2021). The majority declined to “break new ground” by importing those formulations into Press Clause doctrine, noting:

  • The Supreme Court framed that test “for purposes of the Free Exercise Clause” (Tandon v. Newsom).
  • The definitions are textually tied to “religious conduct” versus “secular conduct” (Fulton v. City of Philadelphia).
  • The Free Exercise line itself drew analogies to Press Clause cases, as shown by citations in Church of Lukumi Babalu Aye, Inc. v. City of Hi- aleah, 508 U.S. 520 (1993), and Emp. Div., Dep't. of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990), to Press Clause precedents including Minneapolis Star & Trib. Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983), and Grosjean v. Am. Press Co., 297 U.S. 233 (1936), among others.

Even if imported, the majority concluded Indiana’s limited witness categories do not undermine the asserted interest (inmate dignity), because those admitted have a direct connection to the inmate, victim, or procedure.

B. Legal Reasoning

1. Threshold skepticism: executions are not “court proceedings”

The opinion’s first move was conceptual: executions occur after adjudication and sentencing, outside the “judicial process.” The court invoked Bradley v. United States, 410 U.S. 605 (1973), for the proposition that prosecution terminates when sentence is imposed. This framing supports the majority’s view that the usual access values—checking “judges and litigants,” “more accurate fact finding” (United States v. Eppinger)— do not map neatly onto the execution chamber.

2. Experience prong as the decisive bottleneck

The holding ultimately turns on history: while executions were public at the Founding, by the mid-19th century many states moved them to private settings; the last public execution occurred in 1937; and modern executions occur in facilities with a small number of witnesses. The majority treated that shift as legally salient closure by law, not mere changes in public interest.

The plaintiffs’ evidence of statutes allowing limited witnesses and occasional press attendance was deemed insufficient because the Supreme Court’s access cases look for categorical openness to “the press and general public,” not curated access for a handful of observers.

This directly rejects California First Amendment Coalition v. Woodford’s “representatives for the public at large” rationale, distinguishing the trial context in Richmond Newspapers, Inc. v. Virginia (where openness remained legally intact) from executions (where openness was legislatively curtailed).

3. Logic prong left largely unresolved, but constrained

The court acknowledged the “fair and compelling” transparency argument, but emphasized the countervailing concern that opening executions to uninvited strangers could offend the dignity of final moments. Instead of resolving the balancing, the court relied on the doctrinal structure: Press-Enterprise II requires both prongs; failing “experience” defeats the claim regardless of “logic.”

The court’s additional move—citing N. Jersey Media Grp., Inc. v. Ashcroft and In re Reps. Comm. for Freedom of the Press—signals a broader methodological commitment: history is not merely one factor but a prerequisite, limiting judicial creation of new access rights by “logic” alone.

4. Press Clause analysis: equal treatment defeats discrimination theory

On the Press Clause, the court applied the “no special access” principle from Branzburg v. Hayes and the generally applicable law principle from Cohen v. Cowles Media Co. Indiana’s statute and guidance were characterized as applying to all uninvited members of the public, including the press; media may attend if invited by the inmate, on the same terms as any other invitee.

Pell v. Procunier supplied the key analogy: even when some categories (family, attorneys, clergy) are allowed access, the press is not “discriminated against” if the baseline rule applies equally to the public and the press.

C. Impact

1. A clean circuit split on execution access

The opinion expressly splits with California First Amendment Coalition v. Woodford. That split increases the likelihood of further appellate litigation and potential Supreme Court review, because the question—media/public access to executions—is recurring and of high constitutional salience, yet now answered differently by circuits.

2. Narrowing (or anchoring) access doctrine to adjudicative traditions

The majority’s emphasis that the Supreme Court has used the Press-Enterprise II framework for “traditional aspects of criminal proceedings” and this circuit’s own “court proceedings” cases may encourage governments to argue that access doctrine is courthouse-centered. Even where courts assume the test applies, the opinion elevates the “experience” prong as the gatekeeper.

3. Press Clause claims face headwinds where the public is also excluded

By treating equal exclusion of the press and general public as dispositive, the decision reinforces a core Press Clause theme: discrimination is most likely found where the press is specially targeted (as in the “special obligations” example discussed via Turner Broad. Sys., Inc. v. FCC), not where it is regulated as part of the public at large.

4. Doctrinal non-importation: keeping Free Exercise “general applicability” in its lane

The court’s refusal to import Fulton v. City of Philadelphia and Tandon v. Newsom to the Press Clause is a notable signal of restraint across First Amendment silos. Litigants may still press for cross-pollination, but this opinion provides a roadmap for courts to decline absent clear Supreme Court direction.

IV. Complex Concepts Simplified

  • Preliminary injunction: An emergency order issued early in a case. The moving party must show, among other things, a likelihood of success on the merits. The Seventh Circuit affirmed because plaintiffs could not show they were likely to win their First Amendment claims.
  • Qualified right of access: A First Amendment-based right to attend certain government proceedings, but not absolute; it can be overcome by sufficient justification. The dispute here was whether such a right attaches to executions at all.
  • “Experience and logic” test: From Press-Enterprise II. “Experience” asks whether the type of proceeding has historically been open to the press and public. “Logic” asks whether openness helps the process function. The majority held the “experience” prong fails for executions.
  • Press Clause discrimination: The idea that government cannot single out the press for disadvantage because it is the press. The court held Indiana did not do so because it excluded the press and the general public equally, with the same invitation-based pathway to attend.
  • General applicability: In Free Exercise cases like Fulton v. City of Philadelphia, a law may fail if it burdens religious conduct while allowing comparable secular conduct. The majority refused to transplant that framework into the Press Clause.

V. The Dissent (Jackson-Akiwumi, J.)

The dissent argued that executions are the government’s most extreme exercise of power and therefore demand public observability. It would apply the Press-Enterprise II experience-and-logic framework beyond the courthouse, emphasizing that historically executions were public and that modern witness practices (including press witnesses) preserve the “public nature” of executions.

On “logic,” the dissent stressed transparency as a check on cruelty and error, tying the First Amendment’s democratic accountability purposes to the Eighth Amendment’s concern for humane administration. It argued Indiana’s system makes public oversight contingent on the condemned inmate’s guest choices and provides no adequate substitute for neutral observers.

The dissent warned that the majority’s approach effectively “begin[s] and end[s] the inquiry at courthouse doors,” potentially insulating executive branch proceedings from public oversight.

VI. Conclusion

Associated Press v. Ron Neal establishes, in the Seventh Circuit, that there is no qualified First Amendment right for the press or public to witness Indiana executions under Press-Enterprise II because executions are not historically open to the “press and general public,” and that Indiana’s invitation-based witness policy does not violate the Press Clause when it treats the press no worse than the public. The decision deepens a circuit split with the Ninth Circuit’s California First Amendment Coalition v. Woodford, setting the stage for further litigation over the Constitution’s demand for transparency at the moment the state takes a life.