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Earnhardt autopsy photos are public record

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

04.08.01

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The Orlando Sentinel had to know what was coming. You can't ask for the autopsy photos of a beloved NASCAR driver like Dale Earnhardt and expect to walk away unscathed. The newspaper's request to see — but not publish — the photos led to a torrent of criticism. Teresa Earnhardt called on the driver's fans to express their outrage over the newspaper's public records request. They responded in the tens of thousands, including subscription cancellations and calls for boycotts of advertisers.

In the weeks since the Sentinel's initial request, the controversy has escalated. While the Sentinel has said all along that it only wanted to see the photos so a head-trauma expert could make an independent determination of the cause of death, that hasn't reassured Earnhardt's fans, who view the newspaper's request as ghoulish.

This is a case study in just how respect for a celebrity, disrespect for the news media and creeping concerns about personal privacy and the Internet can form the kind of potent combination that affects our judges, influences our lawmakers and can forever alter our access to public information. I'm sympathetic to the concerns of Dale Earnhardt's family and fans, but the state of Florida has taken a path that suggests fame trumps the law.

The real lessons of the autopsy controversy:

  • Celebrities (and the families of celebrities) are treated differently. While this is not exactly a revelation, it was simply stunning to see a circuit court judge deny the Sentinel access to what is clearly a public record. In Florida, autopsy photos are public records unless there is an ongoing criminal investigation. Instead of applying the law, the judge issued a preliminary injunction and denied the newspaper's request for access, saying the photos had "no bona fide newsworthiness."

  • Public pressure fuels legislation. Again, no revelation, but who could have anticipated that the Florida Legislature could write and pass a bill to exempt autopsy photographs from public records law and send it to Gov. Jeb Bush for his signature in less than a month? What was the rush? As State Sen. Jim King of Jacksonville told a Sentinel reporter, "Every day that goes by without this bill passing is another day closer to a judge having to make a decision he doesn't want to make." (See first point above.)

  • A free press plays better on offense than on defense. The Orlando Sentinel's rationale for pursuing these records was journalistically sound, but it's not a choice that every editor would make. I was a newspaper editor for 16 years and learned that there are many ways to go about gathering information, some of them more palatable to the public than others. Every editor has to make that choice. Typically, you weigh whether the same information is available in other ways, and whether the steps you're taking to gain information, including litigation, are worth the cost. It has to be each newspaper's individual call, but this much is certain: A news organization has to jump in with both feet or not at all. Instead, the Sentinel has opted for legal Hokey Pokey, one foot in and one foot out.

At one stage in this case, after being showered with criticism, The Orlando Sentinel pursued a settlement with Teresa Earnhardt. The deal would have given access to the photos to a third party, who in turn would have shared its findings with the newspaper. This also would have had the effect of preventing any other news organization from accessing these public records. The newspaper seemed to want it both ways. It asserted that the autopsy photos were public records but was willing to settle for a sneak peak. Now the newspaper is challenging the new legislation.

  • The Internet fuels fears. Autopsy photos have been public records in Florida for years and there's been no history of media exploitation of those images. Why the uproar now? It's due in part to Earnhardt's legendary status, but it's also tied to recognition that there are no boundaries on the Internet.

While Mrs. Earnhardt was battling a single newspaper, it is clear that she was primarily concerned with potential abuse on the World Wide Web. Without legislation, "Make no mistake, sooner or later the photos will end up unprotected and published and most certainly on the Internet," she said.

There's the rub. The Internet may be the most effective vehicle for free speech in the history of the world, but it also doesn't play by traditional rules. The Sentinel may promise not to publish distressing photos, but will www.autopsypix.com? All public information runs the risk of being abused, distorted and manipulated on the Internet. Does that mean that we need to cut off public information?

Couple concerns about irresponsible Web sites with disdain for traditional news media (a recent First Amendment Center survey indicates that 51% of Americans say the press has too much freedom), and you've got the seeds of a movement to scale back access to government records.

One national journalism organization pinpointed the overriding concern in the autopsy battle. "What's getting lost in this debate is whether government has a right to withhold records that are clearly public," Society of Professional Journalists President Ray Marcano told the Associated Press. "And the answer is simple: government does not and should not even try."

But rest assured that government will try. Unless the nation's news media make a better case for the public benefit of maintaining access, we'll see dramatic changes in freedom of information laws in this country. In a legislative whirlwind, Georgia has already passed a similar law limiting access to autopsy photos, and bills are pending in South Carolina and Louisiana.

The theory has always been that we need a free press with access to government information to keep government in check. Increasingly, we are seeing the public demand government intervention to keep the press in check.

And that should worry us all.

Your questions and comments are welcome. Write to Ken Paulson at the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn. 37212. E-mail address: kpaulson@fac.org.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Court: Student newspaper, Web site can challenge Florida autopsy-photo law
Judge says court needs to resolve conflict between privacy rights, public-records statute.  04.06.01

Web site owner loses appeal to access Earnhardt autopsy photos
Florida court says site’s operator didn’t respond to order to explain why case shouldn’t be dismissed.  05.09.01

Legislature dims Florida's sunshine laws
Lawmakers passed 15 new exemptions to public-records laws, routinely met in secret, and approved bills so quickly some members didn't know what they were voting on.  05.12.01

Florida judge hears testimony on autopsy-photo law
Attorneys seeking access to Dale Earnhardt photos call statute vague, unconstitutional.  06.11.01

Florida judge upholds state law sealing autopsy photos
Meanwhile, court still considering challenge to order barring access to Dale Earnhardt photos.  06.12.01

Newspapers: Florida autopsy-photo law is unjustified, overbroad
Orlando Sentinel, Sun Sentinel file motion asking circuit court to declare statute unconstitutional.  08.31.01

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