Louisiana could soon jail anyone who reveals the identity of execution drug suppliers

Anyone who discloses where Louisiana gets its drugs to use for executions could face a criminal sentence and fines — even journalists who obtain the information lawfully — under a proposal the Legislature is considering. 

The provision is tucked into House Bill 6 by Rep. Nicholas Muscarello, R-Hammond. The primary goal of his legislation is to expand the methods Louisiana can use to execute prisoners to include electrocution and nitrogen hypoxia. 

The bill shields all records related to the execution, including which companies and individuals provide execution drugs, from public disclosure. Anyone who discloses the information would be subject to up to two years in prison and up to a $50,000 fine. 

Offenders could also face a civil suit from the drug provider or the individual whose identity is disclosed. The crackdown on disclosure is meant to incentivize drugmakers to sell execution drugs to the state, Muscarello said. 

“This legislation is an assault on the First Amendment right to speak and the freedom of the press,” Katie Schwartzmann, director of the Tulane First Amendment Law Clinic said in a statement to the Illuminator. “The bill punishes a journalist for sharing government information of great public concern – something the Supreme Court has consistently rejected, even if confidential information is leaked.” 

Muscarello said punishing a journalist was not his intention but would not commit to removing the provision from the bill. 

“Ultimately, the message needs to be that we don’t want to expose drug manufacturers, no matter how that may be,” Muscarello said in an interview. 

Even the prospect of jail time for publishing information in the public interest could constrain the news media, experts say. 

“The threat of two years in jail or $50,000 will have a massive chilling effect on reporting on the death penalty and leave the public in the dark,” Schwartzmann said. “The state’s power is at its peak when it puts someone to death. There should be more transparency — not less. The need for transparency and accountability is even greater as the state implements new or different methods of executions.” 

The House and Governmental Affairs Committee, which is charged with handling legislation related to public records laws, will meet Wednesday to discuss Muscarello’s bill, which the House Committee on the Administration of Criminal Justice unanimously approved Tuesday. 

Muscarello said he supports the freedom of the press and is open to discussing an amendment that would remove that provision — but added “there’s no guarantees.” 

That provision of the bill is likely unconstitutional, experts say, as the U.S. Supreme Court’s decision in Bartnicki v. Vopper set the precedent that media defendants can’t be held liable for publishing information, even if a third party violated the law to obtain it. 

Though the bill will get a second hearing to discuss the records aspect of the law, the loss of transparency when the Legislature expedites proposals is a problem for Schwartzmann. 

“It’s also troubling that the legislature is fast-tracking this bill during a special session when it could be considered during a regular session, with more opportunity for the public to weigh in on this matter of great public concern,” Schwartzmann said. 

Gov. Jeff Landry’s call to bring the Legislature into a special session gives lawmakers more than two weeks to achieve his priorities. Republican leaders, with the power of supermajorities in both chambers behind them, have made haste with their legislation at every opportunity, potentially putting the legislature on track to adjourn early. 

The Tulane First Amendment Law Clinic provides services to the Louisiana Illuminator and other news outlets.