Can the government broadcast an execution, as it plans to do for the Fort Hood shooter?
The Pentagon’s announcement that it plans to livestream the execution of Nidal Hasan in December raises questions over whether the government can publicly broadcast the death penalty.
The Pentagon’s announcement that it plans to livestream the execution of Fort Hood shooter Nidal Hasan in December raises questions over whether the government can publicly broadcast the death penalty — a matter that legal experts say might end up in court.
Hasan, a former Army Medical Corps psychiatrist, was convicted in 2009 of killing 13 people at the U.S. Army post located near the city of Killeen in Texas. Secretary of Defense Pete Hegseth wrote Thursday in a post on X that the Pentagon plans to carry out its first firing squad execution in decades on Dec. 3 — and broadcast it. It is not clear where the event would be aired.
“I think the execution will be delayed as courts sort out the various — and novel — issues involved,” said Dan Urman, director of the law and public policy minor program at Northeastern University, who teaches constitutional law.
Is the public allowed to watch?
The U.S. Army’s current regulations outlining procedures for military executions stipulates that only certain people are authorized to witness them. Those permitted include military and prison officials, execution team members, the condemned defendant’s attorney and chaplain, at least two media representatives and members of the prisoner’s family, among others, according to the regulations. It also bars minors from viewing an execution.
The question of whether the military can livestream the spectacle, however, is a gray area, experts say.
Traditionally, the Federal Communications Commission, or FCC, has regulated indecency, obscenity and vulgarity, said John Wihbey, professor of media and communications technology at Northeastern University.
“Violence has always been a gray area, and in this case, I don’t think there would be justifiable restrictions,” said Wihbey, who is also assistant vice chancellor for strategic AI initiatives. “At the same time, the broadcasters are commercial entities who have first amendment rights of discretion of their own, and could possibly just decide not to carry this particular event.”
Today, civilian executions are typically conducted behind closed doors, with access limited to a small, authorized group of witnesses.
States began banning public executions in the 19th century, and courts have upheld some restrictions on public access in several notable cases, Urman said.
One such case involves the Fifth Circuit Court of Appeals in Garrett v. Estelle, which in 1977 held that the First Amendment does not guarantee journalists a right to film executions for television broadcast. A series of other cases have yielded similar conclusions in states around the country.
Additionally, Urman said that public executions “have a troubled history” in the U.S., as they are “often associated with lynchings of African Americans in the South.”
What are the legal issues?
At the core is whether a public execution violates the Eighth Amendment’s ban on cruel and unusual punishment, Urman said.
While federal executions are constitutional, Nidal’s lawyers could argue that making the punishment public and livestreaming it transforms the nature of the punishment by adding an element of humiliation and degradation, Urman said.
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If the case reaches the Supreme Court, Urman suggested that broadcasting the execution might be defensible under so-called “originalist” thought, an approach to the Constitution that argues it ought to be interpreted according to its original public meaning at the time it was adopted. One such argument, he said, might be that public executions were common in the founding era until about the mid-twentieth century.
A potential challenge to the public execution might then pit the court’s “evolving standards of decency” doctrine, which suggests that the definition of cruel and unusual punishment evolves with societal standards, against arguments that public executions were common when the Eighth Amendment was adopted, Urman said.
“There could be five votes [on the Supreme Court] to let the execution proceed — even in public,” Urman said of a potential high court review.
What distinguishes a military execution from a civilian one?
Military executions are far rarer than civilian executions, and military law allows the death penalty for certain offenses that do not necessarily have civilian equivalents, Urman said.
But military executions must be approved by the president, according to the Death Penalty Information Center, a nonprofit organization that tracks and analyzes capital punishment in the United States.
Both military and civilian capital cases require a unanimous jury verdict for a death sentence, though military law also requires unanimous agreement on the sentence itself, according to the Death Penalty Information Center.
