News groups back pornography publisher Larry Flynt's push for records on Missouri's execution methods

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FILE - In this April 30, 2011 file photo, Larry Flynt speaks in Los Angeles, Calif. The 8th U.S. Circuit Court of Appeals in St. Louis is hearing arguments Wednesday, Jan. 14, 2014 by the American Civil Liberties Union of Missouri, which represents the Hustler publisher, to overturn the lower court ruling that denied Flynt's attempt to intervene in a 2013 lawsuit over Missouri's largely secret execution methods. (AP Photo/Katy Winn, file)


ST. LOUIS — A coalition of 14 news organizations wants a federal appeals court to allow pornography publisher Larry Flynt to join a lawsuit seeking to force Missouri to disclose more details of its execution methods.

A lawyer for the news groups, which include The New York Times, The Washington Post and Reporters Committee for Freedom of the Press, argued Wednesday before a three-judge federal panel in St. Louis that the Hustler magazine publisher should be allowed to join the pending lawsuit on First Amendment grounds.

A federal district court judge had denied Flynt's request to join the suit, originally filed by death row inmates seeking more information about the execution process. Flynt opposes capital punishment and sought to join the case shortly before the November 2013 execution of Joseph Paul Franklin, a white supremacist who admitted to shooting Flynt in a 1978 attack in Georgia that left him paralyzed from the waist down.

Franklin was executed for a 1977 sniper attack at a suburban St. Louis synagogue that killed a 42-year-old father of three.

"Courts are public places," said Tony Rothert, legal director for the American Civil Liberties Union of Missouri, which represents Flynt — who didn't attend the hearing. "The public has an interest in knowing what's done and why. When court (records) are kept secret, the public and the media are not able to do their jobs."

The judicial panel didn't immediately rule on the request to allow Flynt to join the suit, a request opposed by a lawyer from the Missouri Attorney General's Office. The judges subjected each of the three attorneys to sharp questioning, with Judge C. Arlen Beam suggesting to attorney Benjamin Lipman, who represented the news groups, that "you're throwing around the First Amendment, it seems in this case, with reckless abandon."

The news groups themselves are not seeking to join the suit, but say Flynt should be permitted to do so.

The stated purpose of Flynt's request to join the case was a narrow one: he wanted the lower federal court to unseal 20 docket entries from the underlying effort to learn more details about the state's execution protocol that had been closed without explanation.

Prior to Franklin's execution, Missouri had planned to become the first state to put an inmate to death using the anesthetic propofol, until an outcry from the medical community helped scrap that approach.

Most propofol is made in Europe, and the European Union threatened to limit exports if it was used in an execution. Missouri subsequently switched its execution drug to pentobarbital, an anesthetic similar to the drug used to put pets to sleep. Flynt's motion claimed too few details about that switch were released to the public, including the identity of the compounding pharmacy that provides the drug to state prison officials.

Franklin was convicted of eight murders: two in Madison, Wisconsin, two in Cincinnati, two in Salt Lake City, one in Chattanooga, Tennessee, and the one in St. Louis County. He was sentenced to death in 1997. He was never charged in Flynt's shooting but reportedly confessed to at least 21 killings, 16 bank robberies and other crimes.

Flynt was standing trial on an obscenity charge in Georgia in 1978 when he was wounded by a sniper's bullet. No one was arrested at the time.


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