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Open-casket picture not invasion of privacy

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NEWS MEDIA UPDATE   ·   OKLAHOMA   ·   Privacy   ·   Jan. 4, 2006

NEWS MEDIA UPDATE   ·   OKLAHOMA   ·   Privacy   ·   Jan. 4, 2006


Open-casket picture not invasion of privacy

  • A photograph taken of an open casket during a National Guardsman’s funeral did not invade his family’s privacy largely because the family publicized the service and set aside press seating, a federal judge has ruled.

Jan. 4, 2006  ·   A Harper’s Magazine photographer acted within his First Amendment rights when he took pictures of an open casket at the funeral of an Oklahoma National Guard member killed in Iraq, a federal judge ruled in granting summary judgment to the photographer and the publication.

In dismissing the case, Judge Frank H. Seay of the Eastern District of Oklahoma in Muskogee, Okla., ruled Dec. 22 that the First Amendment protected Peter Turnley because his pictures depicted a public, newsworthy event, trumping Kyle Brinlee’s family’s privacy interests during the funeral.

“This couldn’t have been a better order,” said lawyer Douglas Dodd who represented Harper’s in the case. “It was a pleasant read — there was virtually nothing in there to disagree with.”

The lawsuit arose after the funeral of Brinlee, believed to be the first Oklahoma National Guard member to be killed in action since the Korean War. At his May 19, 2004, funeral nearly 1,200 people showed up, including Oklahoma Gov. Brad Henry and Turnley, who photographed the open casket. One of his photos was featured in a photo essay titled “The Bereaved” in the August 2004 Harper’s.

Following the publication of the picture, Brinlee’s father, Robert Showler, and grandfather, Johnny Davidson, sued Turnley and Harper’s, claiming invasion of privacy, false representation, and intentional infliction of emotional distress.

None of the plaintiffs’ claims contained any genuine issues of material fact, the court found, dismissing the lawsuit by granting the defendants’ motion for summary judgment.

“Plaintiffs had the right to control the burial of their loved one but chose to toss control of the event to the wind,” Seay wrote. “In fact, plaintiffs appear to have 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. Plaintiffs wanted the death of their loved one publicized. Plaintiffs, not defendants, chose to have the casket open at the funeral. Plaintiffs, not defendants, decided to invite the press to the funeral.”

In publicizing the event, the court found the plaintiffs lost their right to privacy during the funeral.

“It is difficult for the court to see how plaintiffs can now complain that their right to privacy was violated about something they intentionally chose to expose to the public,” Seay wrote.

Nearly all recent decisions from the U.S. Supreme Court also support the court’s decision, according to Dodd.

“Supreme Court case law essentially says that the press cannot be punished for covering newsworthy stories in public places,” Dodd said. “It’s been fairly consistent.”

The court also rejected the family’s invasion of privacy charges, which included three separate claims: appropriation, publication of private facts and intrusion upon seclusion.

Appropriation awards damages when another’s name or likeness is used for commercial purposes. The court “does not see how this photo was being used for commercial purposes” as it appeared in a news photo essay, Seay wrote.

Publication of private facts awards damages for publication of highly offensive private facts that do not legitimately concern others. “Plaintiffs chose to open the casket of the decedent at a funeral that was open to the public,” Seay wrote. “Over 1200 people viewed the decedent’s remains at his funeral. . . . The picture of decedent was not a publication of a private fact.”

Finally, the court threw out the intrusion upon seclusion claim which can arise during intentional intrusion into the solitude or seclusion of another that a reasonable person would find highly offensive. Since the funeral was open, “what Turnley did was give further publicity to a scene which plaintiffs chose to make public.”

The court also dismissed numerous other claims — including intentional infliction of emotional distress, fraud, and negligent hiring.

“The facts in this case were pretty straightforward,” Dodd said. “It was a public funeral — despite the plaintiff’s pleading to the contrary — as it was held in a high school auditorium and had a separate press section. Those facts did not bode well for the plaintiffs. Our hope here is that these facts will make good law.”

The plaintiffs have told Dodd they intend to appeal to the U.S. Court of Appeals in Denver (10th Cir.).

“It’s really important that we try and get the whole decision upheld,” he said. “Our hope is that [the 10th Circuit will] see the same thing this court saw.”

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

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