If You Are Doing Nothing Wrong Then You Have Nothing to Hide. Another Foray Into Execution Secrecy in Georgia

On September 16, the state of Georgia plans to execute Stacey Humphreys for the 2003 murders of two real estate agents, Cyndi Williams and Lori Brown, in a model home where they were waiting to greet visitors. As CBS News reports, “Evidence presented at trial showed that Humphreys forced his two victims to strip naked and give him their bank PINs before fatally shooting them… Humphreys was on parole for a 1993 felony theft conviction at the time and had been released from prison 13 months earlier.” If the state goes through with its plan, Humphreys will be the first person put to death in Georgia since 2024 and the fifty-fifth person the state has executed by lethal injection. On September 2, Appen Media Group (AMG) filed suit in the United States District Court for the Middle District of Georgia. It is seeking a temporary restraining order to prevent the state from hiding key parts of Humphreys’ execution. Under the ground rules now in place, AMG observes, the execution would be carried out in ways that violate the First Amendment guarantee of press freedom. The Georgia lawsuit tees up just the latest skirmish in the ongoing battle against execution secrecy in the United States. The court would be well advised to grant the restraining order and carefully examine Georgia’s reasons for restricting press access to some of the most critical parts of the execution process. Were it to do so, it would find those reasons woefully inadequate. The fight against such restrictions is now being carried out in many death penalty states. In a June 2026 report, the Death Penalty Information Center noted that “Every active death penalty state now has a law shielding key information about executions, such as the source of lethal injection drugs, the identities of execution team members, and whether those individuals have adequate training.” “In 2026,” it continued, “as botched executions continue to make headlines, multiple states have defended their secrecy policies against legal challenges and concerns raised by advocates and the media.” For example, as DPIC says, in 2023, South Carolina “tightened its secrecy law…to hide ‘identifying information’ about anyone contributing to its executions—from the moment drugs or medical equipment are manufactured to the moment they are used—with up to three years in prison for violators.” Last year, the American Civil Liberties Union sued, seeking to overturn that law. “[R]ather than entering the marketplace of ideas and persuading the public (or the drug suppliers) that the state’s views were correct,” the ACLU suggests, “the state opted to shut down the marketplace by enacting a sweeping Secrecy Statute to silence political speech it disfavors….” “This ban,” it added, “not only further departs from the state’s history of making execution-related information publicly available but criminalizes the disclosure of this information by anyone for any reason. It thus silences the scientists, doctors, journalists, former correctional officials, lawyers, and citizens who have scrutinized the safety, efficacy, morality, and legality of South Carolina’s use of lethal injection….That approach is repugnant to the First Amendment.” While the ACLU suit has yet to be fully resolved, on September 2—the same day the Georgia suit was filed—the South Carolina Supreme Court rejected the state’s effort to take secrecy to an absurd extent when it made clear that no one should have to face punishment for sharing information about the execution process that is “already publicly available.” It rejected the claim that even public information could be treated as the kind of “identifying information” that the state might legitimately keep confidential. But, in April, the Tennessee Supreme Court turned aside a challenge, much like the one brought in Georgia. It temporarily blocked, pending appeal, a lower court decision requiring “the curtains to the official witness room be opened earlier during a lethal injection, allowing witnesses to observe the inmate being secured with restraints to a gurney and the IV insertion process itself. The curtains would have to remain open longer as well, until the pronouncement of death….” In addition, a decade ago, a federal district judge in Ohio dismissed a suit brought by four death row inmates challenging that state’s execution secrecy laws. He said that they did not have “standing” because the injuries they allegedly suffered were “conjectural or hypothetical.” The Brennan Center for Justice argues that the ruling swept further still. The judge held that Ohio’s secrecy statute was “a permissible limitation on the right of access” enacted by the people’s representatives, which in the Center’s reading leaves the law “beyond invalidation by the First Amendment and interference by the courts…” The judge found that the law “does not suppress speech or the ability to oppose the death penalty. It also does not prevent plaintiffs from speaking to their intended audience. Rather, the statutory scheme simply cuts off Ohio and its employees as a source of specific information for both proponents and opponents of the death penalty.” Some argue that in light of those results, the best arguments against execution secrecy run through the Eighth Amendment, not the First. Professor Eric Berger is a leading proponent of that approach. In his view, without being able to access the full range of information about their executions, death row inmates “cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review. As in other constitutional contexts, then, due process norms require that inmates be permitted access to information necessary to protect other constitutional rights.” But this approach has yet to bear fruit, and because the Georgia case was brought by a news organization rather than an inmate, the Eighth Amendment is not available here in any event. AMG’s approach is two-pronged. First, it raises a variety of procedural objections to Georgia’s execution secrecy rules. It argues that “Defendants currently exercise full control over media presence and executions. They have the unfettered ability to decide which media outlets and representatives are allowed to observe execution proceedings; which components of the proceedings [those outlets’] representative[s] are allowed to see and hear; and what information the press and the public receives.” “Nothing stops defendants from making those decisions arbitrarily, vindictively, discriminatorily, or for the purpose of hiding misconduct or error.” The suit points out that “the First Amendment prohibits a government entity from exercising unbridled discretion over protected activity.” Moreover, AMG argues that the state’s desire for secrecy is incompatible with a long history in which the execution process was “open to the general public” and that public access is important in ensuring that the execution process is conducted “humanely and in accordance with the law.” AMG wants access to what it calls “critical preparatory steps” in the lethal injection process, in particular the preparation and handling of the drugs used, and the insertion of the IV lines required to carry those drugs. It wants to be able to see and hear “the bulk of the execution process.” It is right to seek such access. More than fifty years ago, Supreme Court Justice Hugo Black wrote that the press has an “essential role in our democracy. The press,” he said, “was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.” The federal judge hearing the Georgia case should remember Black’s admonition and say no to the secrecy the state wants to have when it puts Stacey Humphreys to death. Only then can the press do the job Black said the Founders assigned to it.