Privacy of Death Photos and Videos
Photos of the nude and decapitated body of a murdered hiker, sought by a writer on assignment for Hustler magazine, will not be released, a judge in Georgia ordered Wednesday. . . .
The judge’s order came on the same day the Georgia House Governmental Affairs Committee unanimously passed “The Meredith Emerson Memorial Privacy Act,” which would prevent gruesome crime scene photos from being publicly released or disseminated, according to Rep. Jill Chambers, the bill’s principal sponsor. DeKalb Superior Court Judge Daniel Coursey issued an order restraining the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.” . . . .
House Bill 1322 would prevent the release of photographs of the bodies of crime victims that are “nude, bruised, bloodied or in a broken state with open wounds, a state of dismemberment or decapitation,” said Chambers.
The story notes that some have First Amendment concerns:
First Amendment lawyers are watching the outcome of this lawsuit and the bill.
“The photos are awful, but it’s also awful to see pictures of people in wars, soldiers fighting or the victims of wars,” said New York attorney Martin Garbus. “I don’t think there should be any kind of censorship because of awfulness.”
Garbus surmised that privacy laws could be applied in this instance but cautioned that even such laws could be considered limitation of free speech.
But this case isn’t about “censorship.” No speech is being censored. Hustler is just being denied certain materials it wants to use in its speech. It doesn’t have a First Amendment right to obtain whatever photos or other information it desires.
The First Amendment doesn’t mandate that the government disclose all records in its possession. In Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information. As long as the government avoids “prohibiting a speaker from conveying information that the speaker already possesses” it can deny access “to information in its possession.”