Favish Decision Increases Risk for Publication of Death Scene Images

By Susan Seager
[April 2005]

Media defense lawyers may have overlooked the potential ramifications of National Archives and Records Administration v. Favish, 541 U.S. 157, 124 S. Ct. 1570 (2004), the recent United States Supreme Court decision denying a Freedom of Information Act (FOIA) request for death scene photographs of Vincent Foster, Jr., President Clinton’s deputy counsel. This would be a mistake.

The Supreme Court’s unanimous decision increases the risk for broadcasters and publishers who disseminate graphic death scene images, whether in the form of front-page newspaper photographs of inner city crime scenes, or Internet postings of videotaped beheadings of American hostages in the Middle East. Tort lawyers can be expected to assert that Favish resurrected the long-disfavored common law “survivor right of privacy.” Under this theory, plaintiff’s lawyers would argue that survivors have the right to sue the media for the publication of graphic images of their dead relatives to recover for their emotional distress upon seeing the images. In fact, even before the Supreme Court issued its decision, plaintiff’s lawyers were citing the lower court decisions in Favish and other FOIA cases to prop up this disfavored tort theory.

Fortunately for the media, there are numerous reasons why such an attempt to revive this disfavored theory of recovery should fail and that Favish should not be viewed as creating a private right of action, especially against the media. First and foremost, the Favish decision merely interprets a provision of FOIA and, as the Supreme Court explained in a footnote in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 n.13 (1989), “[t]he question of the statutory meaning of privacy under FOIA is, of course, not the same as the question whether a tort action might lie for invasion of privacy or the question of whether an individual’s interest in privacy is protected by the Constitution.” Second, the Supreme Court cannot dictate common law privacy rules to state courts, most of which already have rejected the survivor right of privacy.

The Favish decision

Favish was brought by Allan J. Favish, a pro se Los Angeles lawyer who believes Foster was murdered, despite five separate government inquiries finding the death to be a suicide. Favish v. Office of Independent Counsel, 217 F.3d 1168, 1170 (9th Cir. 2000). Favish made a request under FOIA for copies of 150 color photographs compiled for law enforcement purposes related to Foster’s death, including one photograph of a gun in Foster’s hand that previously was published in Time magazine and on ABC-TV, and 10 unpublished photographs of Foster’s body, head, arms, shoulders, and eyeglasses. Id. The photographs were taken by the United States Park Police in the public park where Foster is believed to have committed suicide by shooting himself with a revolver. Id. The Office of Independent Counsel (OIC), which took control of the photographs, released most of the photographs, but refused to release the 11 photographs of Foster’s body, including the previously published photograph of his hand. Id. Favish sued in the United States District Court for the Central District of California.

U.S. District Court Judge William D. Keller ordered the OIC to release the photograph of Foster’s eyeglasses, but sustained the OIC’s refusal to release the 10 remaining photographs. Id. at 1171.¹ Relying on the law enforcement/privacy exemption in 5 U.S.C. § 552(b)(7)(C), Judge Keller held that the surviving Foster family members had a personal privacy interest in the 10 photographs of Foster’s body, and that their privacy interest outweighed any public interest in disclosure. Id. at 1170-71. The court relied on a declaration by Foster’s sister, who said that she worried that the photographs would be “placed on the Internet for world consumption,” and public dissemination of the photographs would set off another round of intense scrutiny by the media,” causing the Foster family to become “the focus of conceivably unsavory and distasteful media coverage.” Id. at 1182-83. The Foster family members asserting a survivor right of privacy were Foster’s sister, mother, children, widow and “other members of the Foster family,” who were not otherwise described. Id.

The Ninth Circuit, in a 2-1 decision by Justice Noonan, agreed that Section 7(C)’s law enforcement/privacy exemption to FOIA extended to Foster’s survivors, even though the photographs contained absolutely no information about them. Using broad, flowery language, the Ninth Circuit concluded that Section 7(C) implicitly included a survivor-right-of-privacy protection that “extends to the memory of the deceased held by those tied closely to the deceased by blood or love.” Id. at 1173 (emphasis added). The Ninth Circuit, however, remanded the case to the trial court for an in camera review of the actual photographs, noting that “no court has ever seen them” and that the trial court improperly relied solely on the OIC’s description of the photographs as “graphic, explicit, and extremely upsetting.” Id. at 1174. On remand, the district court ordered five photographs released, concluding that disclosing those photographs of Foster’s body, shoulder, hand holding the gun, right side and arm, and top of his head seen through heavy foliage would not “unnecessarily impact the privacy interests of the family,” apparently because they were not overly graphic. 124 S. Ct. at 1575. On a second appeal to the Ninth Circuit, the same panel affirmed the release of four of the photographs and overruled the release of the fifth photograph of Foster’s body, without explanation in an unpublished opinion. 37 Fed. Appx. 863 (9th Cir. 2002). The government sought review, and the Supreme Court granted certiorari.

Favish, supported by several media amici groups such as Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors, but lacking support from any large media corporations, contended that Foster’s survivors had no privacy interest under Section 7(C). Favish relied on well-established common law and previous FOIA decisions to argue that the right of personal privacy allows individuals to control information about themselves, not about their dead relatives. 124 S. Ct. at 1576. Quoting from the Supreme Court’s decision in Reporters Committee for Freedom of the Press, 489 U.S. at 763, Favish asserted that “the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.” 124 S. Ct. at 1576 (holding that a person has a privacy interest sufficient to prevent disclosure of his own rap sheet).

But Justice William M. Kennedy, writing for a unanimous Supreme Court, rejected this well-established rule, at least in the context of FOIA. “We disagree. The right to privacy is not confined ... to the ‘right to control information about oneself.’” Id. The Court held that “FOIA recognizes surviving family members’ right to personal privacy with respect to their close relative’s death-scene images” and allows “family members ... [to] object to the disclosure of graphic details surrounding their relative’s death[.]” Id. at 1579, 1580. “We have little difficulty ... in finding in our case law and traditions the right of family members to direct and control the disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes.” Id. at 1578. Based on this “tradition,” the Court concluded that the “personal privacy” exemption to FOIA was intended by Congress “to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and our cultural traditions.” Id. at 1578. The Court restricted the class of survivors to “close family members,” although it did not define that term. Id. at 1579. It did not endorse or discuss the broad “blood or love” language of the Ninth Circuit.

The Court based its decision on three grounds: (1) a “well-established cultural tradition acknowledging a family’s control over the body and death scene images of the deceased”; (2) a handful of obscure common law decisions dating back to the 1800s; and (3) several FOIA decisions from the D.C. Circuit. Id. at 1578-80. For its “cultural tradition” ground, the Court cited a passage in the 1985 edition of Encyclopedia Britannica, stating that “the ritual burial of the dead has been practiced from the very dawn of human culture and in most parts of the world,” and it declared that Antigone, the ancient Greek tragedy by Sophocles, “maintains its hold to this day because of the universal acceptance of the heroine’s right to insist on respect for the body of her brother.” Id. at 1578 (brackets, internal quotation marks, and ellipses omitted).

For its common law ground, the Court relied on four obscure common law decisions-two of which date back to 1895 and 1930-calling them “typical.” The Court cited a lengthy passage from the 1895 decision:

It is the right of privacy of the living which it is sought to enforce here. That right may be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.

Favish, 124 S. Ct. at 1578, quoting Schuyler v. Curtis, 42 N.E. 22, 25 (N.Y. 1895). The Court cited three similar cases without discussion: Reid v Pierce County, 961 P.2d 333, 342 (Wash. 1998); McCambridge v. City of Little Rock, 766 S.W.2d 909, 915 (Ark. 1989); and Bazemore v. Savannah Hospital, 155 S.E. 194 (Ga. 1930). As discussed below, however, these cases are not, in fact, “typical,” and most state courts have rejected a survivor or relational right of privacy.

The Supreme Court also cited the RESTATEMENT (SECOND) OF TORTS § 652D, p. 387 (1977), which relies on the Bazemore decision to assert that publication of a photograph of a deformed infant could invade the mother’s privacy. Favish, 124 S. Ct. at 1579. But the Supreme Court failed to mention that the Restatement added a “Special Note” to Section 652D cautioning that “[i]t has not been established with certainty that liability of this nature is consistent with the free-speech and freepress provisions of the First Amendment to the Constitution, as applied to state law through the Fourteenth Amendment.”

For its third ground, the Supreme Court relied on several FOIA decisions from the D.C. Circuit. One of those is New York Times Co. v. NASA, 782 F. Supp. 628, 631 (D.D.C. 1991), which sustained a privacy exemption under FOIA and blocked disclosure of the audiotape of the last words of the astronauts of the doomed Space Shuttle Challenger because “[e]xposure to the voice of a beloved family member immediately prior to that family member’s death would cause the Challenger families pain” and inflict “a disruption [to] their peace of mind every time a portion of the tape is played within hearing.” The Court also relied on Katz v. National Archives and Records Administration, 862 F. Supp. 476, 485 (D.D.C. 1994) (exempting from FOIA disclosure autopsy X-rays and photographs of President Kennedy because their release would cause “additional anguish” to the surviving family), aff’d on other grounds unrelated to survivor right of privacy, 68 F.3d 1438 (D.C. Cir. 1995) and Lesar v. Department of Justice, 636 F.2d 472, 488 (D.C. Cir. 1980) (recognizing survivor privacy rights in FBI investigation of Dr. Martin Luther King, Jr, but only as to “information concerning Dr. King’s family and associates”).

The Court, however, did acknowledge that the survivor right of privacy exemption to FOIA can be overcome if the requestor can show that disclosure is in the “public interest.” Favish, 124 S. Ct. at 1580. Creating an entirely new burden not found in the language of FOIA, the Supreme Court held that where a requestor asserts the public interest in learning whether there was government negligence or malfeasance, the requestor “must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. at 1581. Not surprisingly, the Supreme Court held that Favish failed to meet that burden, and ordered all of the photographs of Foster withheld from public view. Id. at 1582.

Even before Favish reached the Supreme Court, plaintiff’s lawyers had sporadically relied on the underlying Ninth Circuit opinion and similar FOIA cases to assert that family members could maintain a survivor-right-of-privacy tort claim against the media arising from mental distress caused by the media’s public dissemination of the images of their dead relatives. Now that the Supreme Court has endorsed the Ninth Circuit’s recognition of a survivor right of privacy in the context of a FOIA case, one can expect that plaintiffs’ lawyers will be emboldened in their efforts to gain recognition for a survivor-right-of-privacy claim.

Most states have rejected a common law survivor right of privacy

The Supreme Court acknowledged in Favish that it was merely interpreting the privacy protections that Congress provided in FOIA, and that this “statutory privacy right” found in FOIA “goes beyond the common law and the Constitution.” 124 S. Ct. at 1579 (emphasis added). The Supreme Court also provided some comfort to American media defense lawyers by not basing its decision on a federal constitutional right of privacy. Whether a survivor-right-of-privacy claim is viable, therefore, should continue to depend on whether individual states have adopted such a right. With few exceptions, the majority of states have rejected a common law survivor or relational right of privacy.

For example, in Cordell v. Detective Publications, Inc., 419 F.2d 989 (6th Cir. 1969), the Sixth Circuit, applying Tennessee law, held that a parent could not maintain an invasion of privacy claim based on her emotional distress caused by reading a pulp magazine article containing “an unauthorized and sensational account of her daughter’s murder.” Id. at 989. Although the court stated that it was “offended by defendant’s tasteless exploitation of this tragedy,” and had “no difficulty understanding the distress that this article inflicted upon” the mother, the court held that the mother had not made out a viable invasion of privacy because the cause of action is “purely personal” and may not be asserted by a survivor. Id. at 989-990. “[O]ne cannot recover for this kind of invasion of the privacy of a relative, no matter how close the relationship.” Id. at 991. The Sixth Circuit explained that the “policy underlying these limitations is not hard to discern.” Where such a claimed injury is “purely emotional, ... it would be difficult to fix [the] boundaries of such a claim.” Id. “How distant a relative could sue? At what relational distance does the danger of feigned claims overcome the likelihood of real emotional distress?” Id. at 991-92. Because there are “no neutral principles which a court can apply to answer these questions,” and because the court found “no suggestion” that Tennessee courts would depart from the majority of jurisdictions that have “declined to recognize a relational tort” of invasion of privacy, the Sixth Circuit held that Tennessee courts would not recognize a relational right of privacy. Id. at 991-92. The court cited dozens of federal and state court decisions in support of its holding that “the right [to privacy] lapses with the death of the person who enjoyed it ….: Id. at 990-91 & nn.2-4.

Similarly, in Smith v. City of Artesia, 772 P.2d 373 (N.M. Ct. App. 1989), the New Mexico Court of Appeals held that the parents of a murder victim had no right to privacy in the photographs of their daughter’s dead body, and affirmed the dismissal of their common law invasion of privacy claim based on some police officers’ allegedly improper circulation of photographs of her nude body. Id. at 374. “[N]o special rule provides relatives a right of privacy in the body of a deceased person.” Id. at 375. Accord Andren v. Knight-Ridder Newspapers, 10 Med. L. Rep. 2109, 2111 (E.D. Mich. 1984) (holding that a mother could not maintain a cause of action for invasion of privacy for a news article detailing the murder of her daughter; “It is axiomatic that an action for invasion of privacy can be maintained only by a living individual whose privacy has been invaded”) (quotations omitted); Metter v. Los Angeles Examiner, 95 P.2d 491, 494 (Cal. Ct. App. 1939) (same for widower’s privacy claim based on article and photograph of wife who had committed suicide because the right of privacy “is purely a personal action, and does not survive, but dies with the person”); Waters v. Fleetwood, 91 S.E.2d 344, 348 (Ga. 1956) (same for parents’ privacy claim arising from newspaper’s public display and sale of photographs of the mutilated body of the plaintiffs’ murdered daughter taken in course of police investigation); Bremmer v. Journal-Tribune Pub. Co., 76 N.W.2d 762, 763-67 (Iowa 1956) (same for parents’ privacy claim arising from publication of a photograph of decomposed body of their son); Kelley v. Post Publ’g Co., 98 N.E.2d 286, 287-88 (Mass. 1951) (same for parents’ privacy claim arising from newspaper publication of a photograph of their daughter’s body taken at the scene of a fatal automobile accident; noting that without such a bar, ‘[a] newspaper could not safely publish the picture of a train wreck or of an airplane crash if any of the bodies of the victims were recognizable”); Costlow v. Cusimano, 311 N.Y.S.2d 92, 94-95 (4th Dep’t 1970) (same for parents’ privacy claim arising from the publication of photographs of the dead bodies of their two young children who had suffocated inside a refrigerator, even though the photographs were taken inside the plaintiffs’ home and without their consent); but see Loft v. Fuller, 408 So.2d 619, 624-625 (Fla. Dist. Ct. App. 1982) (observing that the “majority view, as represented by the Restatement of Torts, is that the deceased relatives may not maintain an action for invasion of privacy ... based on their own privacy interests,” but surmising in dicta that Florida might recognize a survivor right of privacy based on the publication of “grotesque pictures of the deceased’s body” where “defendant’s conduct towards a decedent [is] sufficiently egregious”). As this weight of authority demonstrates, the Supreme Court’s assertion that it was relying on “typical” common law cases was simply wrong.

The minority cases can be distinguished

The four survivor right of privacy cases cited by the Supreme Court in Favish are likely to be cited by plaintiff’s counsel. But they are readily distinguishable from any claim that might be made against a media defendant. Schuyler is an odd case brought more than a century ago. The plaintiff sued to halt the public exhibition of his stepmother’s statue because he believed she would have been very distressed to learn of the public display-she had been shy when alive-and this idea caused him mental distress. 42 N.E. at 24-26. The New York high court rejected the stepson’s convoluted claim as “incredible.” However, the court stated that under some circumstances, survivors could bring a survivor-right-of-privacy claim if a public display of an image of their deceased ancestor violated their “rights in the character and memory of the deceased,” and the display would foreseeably “cause mental distress and injury to any one possessed of ordinary feelings.” Id. at 25-26. Not surprisingly, no modern court has endorsed the notion that a survivor could enjoin the display of an unflattering statue of a deceased relative because it would cause them mental distress. The Supreme Court’s reliance on Schuyler is particularly puzzling because the case was decided decades before the Court’s modern line of cases granting First Amendment protection for news reports about matters of public concern. As one court has observed, Schuyler is among the “few cases ... occasionally cited as recognizing a so-called ‘relational’ right-of-privacy,” which, “[f]or the most part ... are not recent cases and their authority, even in the states which decided them, is questionable.” Young v. That Was The Week That Was, 312 F. Supp. 1337, 1341 n.2 (N.D. Ohio 1969), aff’d, 423 F.2d 265 (6th Cir. 1970).

Bazemore, another common law case cited by the Supreme Court in Favish, is equally obscure and disfavored. In Bazemore, the Georgia Supreme Court held in 1930 that the parents of a malformed dead baby could maintain a survivor-right-of-privacy claim against a hospital and newspaper to enjoin the publication of a photograph of their dead child, who had been photographed inside the hospital without the parents’ knowledge or consent. 155 S.E. at 194-96. Although the U.S. Supreme Court erroneously described the Bazemore decision as a “per curiam” unanimous decision, Favish, 124 S. Ct. at 1578-79, two Georgia justices strongly dissented, saying that the child would have been able to maintain a claim for invasion of privacy had he survived, but “the cause of action would not be in [his] parents.” 155 S.E. at 197-199.

In 1956, the Georgia Supreme Court severely restricted Bazemore, dismissing a survivor-right-of-privacy claim brought by the mother of a 14-year-old murder victim arising from the publication of a photograph of the child’s decomposed body after it had been pulled from a river. Waters, 91 S.E.2d at 348. The Waters court held that there was no invasion of privacy because the child’s murder investigation was a matter of “public” concern. Id. at 348. “There are many instances of grief and human suffering which the law can not redress. The present case is one of those circumstances.” Id. The court repudiated its earlier Bazemore decision, saying that it would “not pass on the question of whether or not there might be a ‘relational’ right of privacy in this State,” noting that “there is a wide divergence of views in different jurisdictions on this question,” and that the decision in Bazemore “was not a unanimous decision.” Id.

The other two cases cited in Favish also can be distinguished. Reid allowed the plaintiffs to maintain survivor-right-of-privacy claims against medical examiner employees who displayed autopsy photographs to friends and others outside of work, but because there were no media defendants involved, the court did not consider any First Amendment defenses. Reid, 961 P.2d at 335. McCambridge is merely an interpretation of the Arkansas public records statute. The Arkansas Supreme Court found that the plaintiff had a privacy interest in the photographs from a triple murder-suicide involving her son, but ordered disclosure of the photographs because the crime investigation was a matter of public concern, even though the photographs were “horrible and sickening.” McCambridge, 766 S.W.2d at 914-15.

Although in Favish the Supreme Court did not cite Douglas v. Stokes, 149 S.W. 849 (Ky. Ct. App. 1912), plaintiff’s lawyers previously have cited the nearly century-old case to support survivor-right-of-privacy claims. But the Sixth Circuit has described Douglas as “one of the few cases standing against the weight of authority” and “clearly distinguishable” because it was based on “breach of contract.” Cordell, 419 F.2d at 991. In Douglas, a couple hired a photographer to take confidential photographs of their deceased infants who were joined at birth. The parents sued after the photographer arranged to have the photographs published without their permission. The Kentucky appellate court found that the photographer “obtain[ed] the information in the course of confidential employment,” and “had no authority to make the photographs, except by their authority, and when he exceeded his authority, he invaded their right.” Douglas, 149 S.W.2d at 849-850. To the extent that Douglas can be interpreted as “recognizing a relational right to privacy because it discusses the severe emotional injury that the plaintiff-parents suffered from the publication of pictures of their deceased infant Siamese twins,” the Sixth Circuit later declared that this “interpretation appears to rest on an assumption that for every emotional injury there must be a remedy-an assumption not generally accepted in the law of torts.” Cordell, 419 F2d at 991 n.4. These four obscure cases were not only weak authority for the Supreme Court’s new survivor right of privacy under FOIA, but they also do not support a publication-based tort claim.

First Amendment protections can be asserted by media defendants

Favish decided a narrow issue of relational privacy rights under FOIA, not whether the First Amendment protects the media’s right to publish accurate information. It can and should be argued that Favish and similar FOIA cases are not binding authority in publication-based claims where First Amendment defenses apply.

For more than 25 years, the United States Supreme Court has recognized that the First Amendment shields the press from liability for publishing lawfully-obtained information about a matter of public concern, even where the information is excruciatingly sensitive or the government has attempted to withhold the information from the public. In so holding, the Supreme Court emphasized that “[g]reat responsibility is ... placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975). In Cox Broadcasting, a local television station learned the identity of a 17-year-old rape and murder victim from a public criminal indictment, and published her name in a news broadcast. Id. at 472-73. The victim’s father sued a television station for common law invasion of privacy by disclosure of private facts, pointing out that a Georgia statute specifically forbade publishing a rape victim’s identity. Id. at 471-72. The Court acknowledged that “powerful arguments ... have been made ... that ... there is a zone of privacy surrounding every individual, a zone within which the State may protect him from intrusion by the press, with all its attendant publicity.” Id. at 487. But the Court held that these common law privacy interests had to yield to the First Amendment privilege to publish information from public court records, underscoring the importance of coverage of official conduct: “Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.” Id. at 491-92.

The First Amendment also protects lawfully obtained truthful reports about non-government matters. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court extended First Amendment protection to the broadcast of an illegally intercepted cell phone conversation. In Bartnicki, the media defendants broadcast a cell phone conversation between two teachers’ union leaders that had been illegally recorded by a third party who later gave it to the media. The Court found that the broadcasts were protected because the media defendants, unlike the interceptor, did not do anything unlawful, and the phone conversation about the union’s labor negotiations was a matter of public concern. “We think it clear ... that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535. The Court also rejected the argument that the union leaders’ right to privacy outweighed the media defendants’ First Amendment protection, emphasizing that “privacy concerns [often] give way when balanced against the interest in publishing matters of public importance.” Id. at 534.

Beginning with its Cox Broadcasting decision and extending without exception to Bartnicki, the Court has never found a privacy interest to be a “state interest of the highest order” sufficient to permit liability for truthful publication about matters of public concern. E.g., The Florida Star v. B.J.F., 491 U.S. 524, 533, 536-37 (1989) (holding that the First Amendment shielded a newspaper from a common law privacy claim brought by a rape victim whose name was published in violation of state statute because report disclosed “truthful information about a matter of public significance”); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103-104 (1979) (holding that the First Amendment shielded two newspapers from criminal liability for publishing the names of juvenile criminal defendants in violation of a state statute because the report was truthfully obtained and reported about a matter of “public significance,” even though information was not taken from any official court records; “A free press cannot be made to rely solely upon the sufferance of government to supply it with information”). The California Supreme Court recently extended this First Amendment protection even further, holding that the media is absolutely protected from liability when reporting about public court records that are not about contemporary events or are “not newsworthy” cases. Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004). As the California high court explained, “the [Supreme] [C]ourt has never suggested, in Cox or in any subsequent case, that the fact the public record of a criminal proceeding may have come into existence years previously affects the absolute right of the press to report its contents.” Id. at 560. The California court inserted a caveat in a footnote, however, saying it was not deciding whether the First Amendment protects news reports based on “non record facts” or “non public records.” Id. at 562 n.8.

It is difficult to predict how courts will reconcile the Cox Broadcasting line of cases with Favish when dealing with publication-based claims arising from graphic death scene photographs. The Favish Court disfavored the publication of death scene images, even where they were arguably a matter of public concern, and found that survivors could object to the disclosure of death scene images to “be shielded ... from a sensation-seeking culture for their own peace of mind and tranquility[.]” 124 S. Ct. at 1577. The decision suggests that courts might require a specific and compelling showing of a public interest for death-scene images. Indeed, the Court stated in Favish that “[n]either the deceased’s former status as a public official, nor the fact that other pictures have been made public, detracts from the weighty privacy interests involved” in images of the dead. Id. at 1580. Courts also are likely to scrutinize whether the images were lawfully obtained. Any degree of misrepresentation, concealment or encouragement of unlawful activity by the source will be viewed skeptically.

Pre-publication strategies should be considered to reduce risk

Until the impact of Favish has been sifted by courts, media lawyers should consider the following possible steps to minimize risks of litigation.

• Pixilation

  The risk of liability might be reduced if pixilation obscures the faces of the dead, as well as graphic wounds, genitals, and identifying features, such as tattoos, even if the body is in a public place. Simply deleting the names of the dead, without blurring the graphic images of their wounds or faces, might not reduce the risk of a claim where the details about the deceased and their manner of death would be recognizable to the survivors. Conversely, if the graphic details are deleted, the names of the dead could be used with less risk.

• Use of previously published images or images taken in public places

  The risk of liability might be reduced by using death scene images from public places or that already have been disseminated to the public. As the Supreme Court stated in Cox Broadcasting, under the common law, “[t]here is no liability when the defendant merely gives publicity to information about the plaintiff which is already public.” 420 U.S. at 491. See also Faloona v. Hustler Magazine, Inc., 799 F.2d 1000 (5th Cir. 1986) (no privacy claim can arise from the publication of photographs of plaintiff and her children in the nude where the pictures had been previously widely disseminated); but see Katz, 862 F. Supp. at 485 (affirming nondisclosure under FOIA of Kennedy autopsy photographs because release would “cause additional anguish” to survivors, even though similar photographs previously were published).

• Government records generally are privileged

  Videotapes, photographs, and documents that have been placed in the public government record, such as a court proceeding, inquest, or other public government proceeding, should be privileged under the First Amendment or statutory privileges for fair reports of government proceedings, and should not create grounds for liability.

• Reenactments carry less risk

  Reenactments of deaths or killings probably carry less risk if the scene is clearly labeled as a reenactment and is not extraordinarily graphic. In Favish, the Court seemed most concerned about an actual dead body being put on public display. This should not be a concern where actors and props are used. Cf. Ruffin-Steinback v. dePasse, 267 F.3d 457, 465 (6th Cir. 2001) (affirming summary judgment rejecting intentional infliction of emotional distress claim; television docudrama reenacting famous singer’s death, including scene of singer’s beaten body being thrown from moving car, was not “so extreme to the degree as to go beyond the bounds of decency”).

Comment

Images of tragic and graphic deaths have long been part of U.S. public discourse, from the scenes of the American Civil War dead photographed by Mathew B. Brady to the Pulitzer Prize-winning photograph of the lifeless body of one-year-old Oklahoma City bombing victim Baylee Almon in a fireman’s arms. These images help inform and influence the public debate about terrorism, war, domestic crime, and even random or accidental deaths. Graphic crime scene and morgue photographs are widely available on the Internet and in books, and have been the staple of tabloid newspapers. See, e.g., Gail Buckland, Shots in the Dark: True Crime Pictures (Little Brown & Co. 1st ed. 2001) (photographs of dead bodies at crime scenes, autopsy photographs of John F. Kennedy, Lee Harvey Oswald, decomposed body of infant Charles Lindbergh, Jr., pp. 43, 92 & 150); William Hannigan, New York Noir: Crime Scene Photos From the Daily News Archive (Rizzoli Int’l Publications, Inc. 1999) (tabloid newspaper photographs of dead bodies at crime scenes, morgue, and in electric chair); Angus Hall, The Crime Busters (Verdict Press 1976) (nude autopsy photograph taken by New York coroner, p. 125); http://wwwjohngiImore.com/Crime%20and %20Morgue/crime scenel.html (crime scene and morgue photographs of murder victim Elizabeth “Black Dahlia” Short); http://spot.acorn.net/jfkplace/02/JiIM.htmI (morgue photographs of Lee Harvey Oswald); http://weirdpicturearchive.com/humans.html (morgue photographs of Uday and Qusai Hussein, Marilyn Monroe, John F. Kennedy, Jesse James, Benito Mussolini and others); http://www.celebritymorgue.com (same).

Risks must be weighed in the wake of Favish. But self-censorship of all images of death should not be the goal, especially where those images inform the public debate about important issues. As the California Supreme Court explained in Shulman v. Group W Prods. Inc., 955 P.2d 469, 474 (Cal. 1998), “[t]he sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media’s right to investigate and relate, facts about the events and individuals of our time.”

FOOTNOTE

1 Favish has posted the photographs he obtained on www.alanfavish.com.

This First Amendment Law Letter is a publication of the law firm of Davis Wright Tremaine LLP and is prepared by its Communications, Media and Information Technologies Department, Kelli Sager and Daniel M. Waggoner (co-chairs), Rochelle Wilcox (editor) and Steve Chung (associate editor).

Our purpose in publishing this law letter is to inform our clients and friends of recent First Amendment and communications law developments. It is not intended, nor should it be used as a substitute for specific legal advice since legal counsel may be given only in response to inquiries regarding particular factual situations.

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