Concerned that the state is hiding information, publisher Larry Flynt is trying to uncover its plans to execute Joseph Franklin on Nov. 20, 2013.

Larry Flynt, who was paralyzed in 1978 by Joseph Franklin, has advocated that Franklin should be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.

On Nov. 9, 2013, the American Civil Liberties Union of Missouri Foundation filed a motion in federal court, on Flynt’s behalf, to unseal documents that have been withheld from the public. The public should be allowed to review information regarding how the state determined its death penalty processes.

For example, the Court relied on a deposition of M3 – the executioner who is supposedly a board-certified anesthesiologist—to make factual findings about how executions will be carried out. “The state claims that its executions satisfy Eighth Amendment standards because their execution team includes a board-certified anesthesiologist,” says Tony Rothert, the ACLU-MO’s legal director. “However, the American Board of Anesthesiology forbids its members from participating in capital punishment. If M3 is certified, it is only because the state is abetting him in hiding his identify from the board. The public should be skeptical of his testimony, but because his testimony is sealed, we do not even know what he said.”

“There has been far too much secrecy clouding the state’s execution plans already, which makes it difficult to trust that the state is acting on our behalf in an ethical manner,” said Jeffrey A. Mittman, the ACLU-MO’s executive director.

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment,” said Larry Flynt. “But, until the death penalty is abolished, the public has a right to know the details about how the state plans to execute people on its behalf.”

Update: Jan. 14, 2015

A Federal district judge had ruled earlier that Larry Flynt could not intervene in the lawsuits to obtain sealed documents from the court, so a hearing was held on Jan. 14, 2015, to appeal this decision. 

The issue in this case is whether the public and media have the right to ask courts to unseal judicial records. A three-judge panel heard oral arguments from Larry Flynt’s attorney, Tony Rothert, legal director of the ACLU of Missouri. Also arguing on Mr. Flynt’s behalf was Benjamin Alan Lipman, an attorney from Lewis, Rice & Fingersh, L.C., who had submitted a friend of the court brief from the Reporters Committee for Freedom of the Press and 13 Media Organizations.

Update: April 7, 2015

Today, United States Circuit Court of Appeals ruled that Publisher Larry Flynt has the right to intervene in a case challenging Missouri’s execution protocol. Flynt seeks to challenge the sealing of judicial records.

“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” explains Tony Rothert, legal director of the ACLU of Missouri. 

“The ACLU plays a unique role by working through the courts to ensure the public has access to the information we need to be an effective check on government power,” said Jeffrey Mittman, executive director of the ACLU of Missouri. “A state’s execution protocol should never be hidden from the public by sealing court documents. When Missouri kills people in our name, the public must know if the manner is ethical, or cruel and unusual.”


Anthony Rothert and Gillian Wilcox

Date filed

January 23, 2017


United State District Court/Western District of Missouri/Central Division



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