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Dismissal upheld in magazine's open-casket photo case

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NEWS MEDIA UPDATE   ·   TENTH CIRCUIT   ·   Privacy   ·   March 28, 2007

Dismissal upheld in magazine’s open-casket photo case

  • A federal appeals court panel has affirmed that the publication of an open-casket photograph from the public funeral of a fallen soldier did not constitute an invasion of privacy, fraud or intentional infliction of emotional distress.

March 28, 2007  ·   A panel of judges from a federal appeals court in Denver (10th Cir.) affirmed summary judgment last week in favor of a Harper’s Magazine journalist who photographed the open casket of an Oklahoma National Guard member killed in Iraq.

The court found that photojournalist Peter Turnley and Harper’s acted within their First Amendment rights when Turnley photographed the 2004 funeral of Sgt. Kyle Brinlee, despite the fact that Brinlee’s family had asked the funeral director that there be no photographs of the open casket. Harper’s published a photo of Brinlee’s open casket in a photo essay titled “The Bereaved, Mourning the Dead, in America and Iraq.”

Brinlee was the first Oklahoma National Guard member to be killed in action since the Korean War. His funeral was held in a high school gymnasium to accommodate the crowd of 1,200 attendees, and Oklahoma Gov. Brad Henry spoke at the service.

Other members of the news media were in attendance, but Turnley was the only journalist known to have photographed the open casket.

Following the photo’s publication, Brinlee’s father, Robert Showler, and grandfather, Johnny Davidson, sued Turnley and Harper’s on claims of invasion of privacy, false representation, fraud, unjust enrichment and intentional infliction of emotional distress.

In December 2005, the trial court in Muskogee, Okla., entered summary judgment for Turnley and Harper’s on all claims.

Judge Frank H. Seay wrote that the family “put the death of their loved one in the public eye intentionally to draw attention to his death and burial. That would be the only reason for inviting the press to attend the funeral.”

Seay pointed out that the family — not Harper’s and its photographer — chose to have the casket open at the funeral and invite the press.

The appeals court agreed and succinctly affirmed the judge’s order on all of the plaintiffs’ claims. Writing for the panel, District Judge Julie A. Robinson opined that since Brinlee’s family members “opened up the funeral scene to the public eye,” they could not assert any invasion of privacy claim.

Furthermore, the court found that whether or not Turnley knew that the family did not want the casket photographed, there could be no intentional infliction of emotional distress since “the photograph of a deceased’s body is not, standing alone, outrageous, even if it was unauthorized.”

“While it could be argued that the publication of the [photo] without prior authorization was in poor taste,” Robinson wrote, “for the reasons discussed, it does not constitute an actionable claim under any of the theories advanced by Plaintiffs.”

The Reporters Committee joined in a friend-of-the-court brief by media organizations on behalf of Turnley and Harper’s.

(Showler v. Harper’s Magazine; Media Counsel: Douglas Dodd, Doerner, Saunders, Daniel & Anderson, Tulsa, Okla.)ES

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