From the Spring 2001 issue of The News Media & The Law, page 10.
As the in-house counsel for the Orlando Sentinel, David Bralow participated in the difficult task of deciding how an independent medical expert could review the autopsy photos of Dale Earnhardt. As a result, he became the target of barbs from angry NASCAR fans and critical media interests.
Together with Orlando Sentinel Publisher Kathy Waltz and Editor Tim Franklin, Bralow adhered to three guiding principles throughout the ordeal. In his own words, Bralow described the goal and purposes of the newspaper’s effort to obtain access to the photographs:
Do the journalism: Before Dale Earnhardt’s death, the Sentinel published a three-part series on its investigation on NASCAR safety issues, including a section on whether NASCAR could do more to minimize basilar skull fractures of the kind that killed Earnhardt. NASCAR’s explanation that Earnhardt died because a seat belt failure was suspect from the start. Seat belt failure was exceedingly rare. The newspaper wanted to look into the explanation. Physicians told our reporters that a properly qualified medical expert who could review the autopsy report and photographs could validate or debunk the seat belt theory. The autopsy photographs were essential to this review. We didn’t want our journalism delayed for a significant period of time by judicial proceedings if we could have an expert review them immediately.
Do the right thing: From the start, Franklin and Waltz had agreed that we didn’t want copies of the photographs; we didn’t want to publish the photographs; we wanted an expert look at them. They had decided that these photographs were meaningful to experts, not reporters. We wanted to be heard, loud and clear, that we were doing this to advance an important story and not hurt anyone’s particular feelings.
Do no harm to the legal precedent: There is an old legal axiom that bad facts make bad law. We did not want the sympathies for Ms. Earnhardt and her family to translate into a heretofore unknown judicial recognition of some privacy right of family members into the private affairs of deceased loved ones. The judicial recognition of this collateral privacy principle could endanger access to other public records. It was a foregone conclusion that the Legislature was going to pass a statute exempting these records. We didn’t want to make the situation worse by seeking access to copies of the autopsy photographs that we weren’t going to publish anyway.
Now, two months later, the journalism has been done. Expert neurologist and biomechanical engineer Barry Myers, M.D., from Duke University has determined that seat belt failure played no part in Earnhardt’s death and that the use of a Head and Neck System (HANS device) would have contributed to Earnhardt’s safety. As a result of the revelations that arose from the report, NASCAR has announced a significant study on safety issues, retreated from the seat belt theory and stated that it will conduct its own investigation of the Earnhardt death. We have maintained our position that good journalism could be done with sensitivity to the family members and we are not responsible for any adverse precedent that leads to the creation or acceptance of a familial right of privacy.
Most important, the Sentinel‘s acts did not prejudice anyone from seeking to obtain access to the autopsy photographs. Indeed, the trial court in Volusia County ruled that the Florida Independent Alligator was not bound by the Orlando Sentinel‘s agreement with the family and could petition the court to view and, perhaps, copy the autopsy photographs. Finally, the Orlando Sentinel and its sister Tribune publication, the South Florida Sun-Sentinel, are challenging the new statute that exempts autopsy photographs as unconstitutional in an action unrelated to the Earnhardt matter.
In other words, the newspaper’s goals were met, despite the ordeal. But as counsel for the newspaper, I am still attempting to figure out what we could have done better and what lessons to take away from the controversy. By far, this dispute was the most draining I had ever experienced.