NEWS MEDIA UPDATE · OKLAHOMA · Privacy · June 20, 2005
Open-casket photo sparks privacy suit against magazine
June 20, 2005 · Harper’s Magazine is asking an Oklahoma federal district court to dismiss a lawsuit brought against it by Robert Showler, the father of Army Spc. Kyle Brinlee, 21, who was killed in Iraq and featured in an open-casket photo in the magazine’s August 2004 issue.
Showler sued the magazine and photographer Peter Turnley in April, claiming invasion of privacy and infliction of emotional distress after the publication of the photo in a pictorial essay titled “The Bereaved: Mourning the Dead, in America and Iraq.”
“I believe Harper’s and Turnley have a very strong position under the First Amendment,” said Douglas Dodd, attorney for Harper’s. “The courts have ruled time and again that public and newsworthy events trump privacy claims.”
Turnley attended Brinlee’s funeral in May 2004 in the Pryor (Okla.) High School gymnasium where about 1,300 people gathered to mourn. Brinlee is believed to be the first Oklahoma National Guard member to be killed in combat since the Korean War.
Dodd questioned whether Showler, his biological father, had standing to bring the suit. Brinlee, whose mother is dead, was adopted by his stepfather in 1993. His maternal grandfather has since been added to the complaint with Showler.
Dodd also questioned the privacy of an event that received both local and national news coverage and where there was a section specifically reserved for the working media.
In a brief responding to the motion to dismiss, Showler’s attorney, Douglas Stall, noted that KOTV-TV in Tulsa was the only media outlet given permission by the family to videotape the funeral proceedings and procession, but not the service itself.
“The community came together to mourn for and honor this young man, and the press were instructed not to take photographs during the funeral,” Stall said. “Peter Turnley was told not to take pictures at the funeral or of the open casket. He violated the family’s right to privacy and went on to publish them to the world.”
“This isn’t a case about freedom of the press, it’s about a reporter’s dishonesty, at least that’s one component of it,” he added.
The first scheduled court meeting to set hearing dates is scheduled for July 12 in Muskogee, Okla. Trail is scheduled for Jan. 3.
Brinlee was killed May 11, 2004, when a improvised explosive device blew up near his vehicle. The Pentagon has banned photographs of coffins when dead soldiers are returned to the U.S., although some photographs have been released through Freedom of Information Act requests.
(Showler v. Harper’s Magazine Foundation; Media Counsel: Douglas Dodd, Doerner, Saunders, Daniel & Anderson, Tusla, Okla.) — JM