Fallen soldiers, open caskets, and freedom of the press

December 29, 2005

While the war in Iraq is controversial enough, there’s been a peripheral debate over the policy on photographs of coffins. Usually, questions have centered around Bush’s policy, attempts to change it, and the pictures that have come to the public’s attention through a Freedom of Information Act request.

But there’s an interesting First Amendment debate in Oklahoma that’s a little different.

The father and grandfather of an Oklahoma soldier slain in Iraq lost their lawsuit over the publication of his open-casket photo in Harper’s Magazine when a federal judge found that the public’s right to see it outweighed the family’s privacy.

The fact that about 1,200 people, including Oklahoma’s governor, saw Kyle Brinlee’s body when they attended his May 19, 2004, funeral in the Pryor High School auditorium played into U.S. District Judge Frank Seay’s decision.

“If the plaintiffs wanted to grieve in private they should not have held a public funeral and had a section reserved for the press,” Seay wrote in granting summary judgment on Dec. 22 to Harper’s Magazine and photographer Peter Turnley.

I can’t even imagine the pain the Brinlee family has had to endure, and in general, I’m inclined to think they are entitled to privacy at a funeral service.

Having said that, the ruling in this case makes sense. About 1,200 people attended the funeral — which was open to the public — and Harper’s showed readers the same images grievers saw in person.

“We have great sympathy for the family and great sympathy for Kyle and all the other soldiers we depicted in the essay,” Harper’s Magazine publisher John R. MacArthur said. “I feel we have an obligation to show the coffins and the bodies in a respectful way, and we thought this was a perfectly respectful way to do it.”

Brinlee’s death was a tragedy, but given the circumstances, freedom of the press deserved protection here.

Sorry to disagree. I think we need to be a heckuva lot more protective of privacy not to mention courtesy. That doesn’t mean a ruling against Harper’s (which I subscribe to and have respect for), but it does mean subscribers like me really owe Harper’s a letter saying, “Back off next time, willya?”

  • Sorry to disagree.

    Don’t be. I posted this because I thought it was an interesting subject that might spark some debate.

    Karl Rove doesn’t work here — dissent is welcome.

  • I may be an odd man out here. I’m of the opinion that this a case where Harper’s should have the right to publish the pictures, but should have had the restraint to not publish them out of deference to the family’s wishes.

  • I guess then you can call me CB’s Nora O’Donnell on this one–I agree wholeheartedly. It was a public funeral open to the press, with special accomodation for the press. For whatever reason, because of this publicity was explicitly approved of and I would argue sought after. And odds are this isn’t something where Harpers asked permission to print the photo (maybe they should have as maybe that would have been the polite thing to do but that is not the issue here). The events probably unfolded as follows: The event is “advertised” as open to the public, with special accomodation for the press. The press, including Harpers, attends, reporting and taking pictures. No objections were lodged at that time. Harpers, under the logical conclusion that this was a very public funeral, then publishes pictures of it. It is only after the pictures are published that the family objects and sues for monetary damages. Harpers cannot now be held liable for monetary damages under the facts presented. The judge’s decision is proper. I feel bad for the family, but in allowing the event to be open to the press with no restrictions prior to the fact of publication of the photos, they gave up their right to seek compensation.

  • Edo, yes it is, albeit a bit vague. Nora O’Donnell ( as cited in my initial post) is a huge pro-Sadministration hack “journalist” on MSNBC who always defends the Sadministration–as most recently noted on a few blogs yesterday and today. As I was defending CB, I likened myself to this twit, I had hoped in a timely and humorous manner (apparenly not). Then, when you agreed with me who was agreeing with CB, I continued on this line with a couple more pro-Sadministration hack pundits/”journalists” who always seem to defend the Sadministration regardless of the issue, one male and one female, as I do not know if you are male or female and did not wish to offend. Sorry for the confusion.

  • In the Yahoo article cited above by Alex, towards the bottom is this statmenent.

    Turnley, an internationally known photographer, had denied the lawsuit’s assertions that he was twice warned by the funeral home against photographing Brinlee’s body.

    If the photographer was warned not to take a picture of the body, then he should have had the decency to abide by the family’s wishes. However, I don’t believe a funeral open to the public with a section for press would have a no-photgraphs policy.

  • fair ’nuff Bubba. being associate with those two hacks just raised my hackles.

    (and apologies for the terrible pun that I should have resisted)

  • PW, I was going to agree with you until I read the following line:

    “If the plaintiffs wanted to grieve in private they should not have held a public funeral and had a section reserved for the press,” Seay wrote in granting summary judgment on Dec. 22 to Harper’s Magazine and photographer Peter Turnley.

    This part is key. They held a public funeral and they invited the press. The pictures are public. They cannot then go and regulate the publication of the pictures and say who gets to use it and who doesn’t.

    Now, I’m all for privacy and property rights, but they shouldn’t have held a public funeral if they didn’t want those pictures to be published, or if they wanted to say “Washington Times can publish the photos but we don’t like you so you can’t publish the photos.” If they held a private funeral, didn’t invite the press to take pictures, and someone snuck out some pictures, I would have to agree with their right to privacy from the press in their mourning, however they choose to privately mourn and whatever their political alignment.

    You know, what bubba said.

    Cheers.

  • I think Rian gets the coveted Rush Limbaugh spot in the CB echochamber, although Curmudgeon and AYM have yet to weigh in…

  • I don’t think PW understood the context of the legal dispute when (s)he made the post. In fact, I wonder if CB understood the context of the legal dispute.

    The context of dispute – whether the photos were already published and it’s a lawsuit about money or whether the issue is blocking Harpers from publishing the photos in some future issue happened to be very important in this case.

    VT – I agree. It seems the issue of whether the photographer was warned or not was a factual disagreement. I wonder if any evidence supporting / refuting this claim was entered. The ruling seems not to care one way or the other.

    Alex

  • 🙁

    When I first intended to weigh in, I had this whole thing written out about how happy I was that I finally found a point I disagreed with CB on. Then I read the rest of the article, and I had to remove it.

    🙁

  • Turnley, an internationally known photographer, had denied the lawsuit’s assertions that he was twice warned by the funeral home against photographing Brinlee’s body.

    I don’t particularly understand the significance of this issue, as the funeral was not held in a prvate funeral home, but in the auditorium of a public high school.

  • Alex — Harper’s had a right to publish and the family probably didn’t know what they were getting into when they opened up to the press. At least, that’s my impression. What I’m trying to get across is that access doesn’t always intend to mean anything goes. If Harper’s had asked before publishing… Restraint. Courtesy. Diffidence. Privacy. I must be getting old.

  • PW–I think you are spot on–regardless of this being open to the public or not or actionable in a court of law or not, Harpers, or any news agency, when it comes to publishing the pictures of a deceased person, should probably seek the family’s permission first. Sounds like a best practice.

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