Picture blurs line of privacy

Kyle Adam Brinlee, a sergeant in the Oklahoma National Guard, died in action in Iraq on May 11, 2004. The government returned his body for burial in his hometown of Pryor (pop. 8,327), some 40 miles east of Tulsa.

The funeral would not have been a happy occasion under the best of circumstances. An intrusive photographer made it even less so. The resulting lawsuit is now pending in the Supreme Court.

Some of the facts are in dispute, but the essential elements are clear. On learning of Sergeant Brinlee's death, members of his family set about arranging for his funeral. Brinlee was the first serviceman from Pryor to die in action since the Korean War 50 years before.

In a small town it was a big story. Gov. Brad Henry would be a prominent mourner. More than 1,200 persons would attend. The small Stephens Memorial Chapel would never hold the crowd. Finally the high school auditorium was reserved for Brinlee's final rites.

By happenstance, in the spring of 2004 Peter Turnley, a contributing editor of Harper's Magazine, was working on a photo assignment. To illustrate a pictorial essay on "The War on Terrorism," he was attending the funerals of several soldiers in different parts of the United States. While shooting in Texas he learned of Brinlee's death. He thought it offered an opportune photo-op.

Thus Turnley obtained permission to attend the funeral in Pryor. He agreed to certain conditions: He was not to approach the grieving family during the service; he was not to work outside a press section in the back of the auditorium; and he was not to take pictures of the open casket. Turnley denies that he agreed not to photograph the open casket. In any event, Harper's published one of Turnley's open-casket photos in its August 2004 edition. Subsequently the photo was published in the French magazine Le Monde.

The offended family sued Harper's for invasion of privacy, emotional distress and unjust enrichment. A federal judge, ruling that the photo was taken in a public place for a newsworthy article, granted summary judgment to the magazine. In the 10th Circuit, U.S. District Judge Julie A. Robinson, sitting by designation, ruled in Turnley's favor. His conduct was not "so extreme in degree as to go beyond all possible bounds of decency and to be utterly intolerable in a civilized community."

Moreover, said Judge Robinson, Turnley's photo accurately depicted "the exact image that plaintiffs chose to expose to approximately 1,200 people who attended the funeral." The published photo did not involve a gruesome death image. Brinlee's funeral was a matter of public interest. It could be argued that Harper's photo spread was in poor taste, said the judge, but poor taste is not an actionable offense.

In their appeal to the Supreme Court, the family's lawyers rely chiefly upon the Supreme Court's opinion three years ago in the Vince Foster case.

Many readers will recall the story: Vince Foster, deputy counsel to President Clinton, was found shot to death on a parkway just east of the capital. It appeared to be suicide. Half a dozen investigators agreed that it was suicide. Doubt nevertheless persisted. Demands continued for new disclosures. Finally a Freedom of Information petition led to Justice Anthony Kennedy's opinion for a unanimous court, upholding the family's residual right to privacy.

That right, said Kennedy, "extends to the memory of the deceased held by those tied closely to him by blood or love." Photos of Foster's bloody corpse could be suppressed if they "could be reasonably expected to contribute to an unwanted invasion of privacy." Members of Foster's family were entitled to refuge "from a sensation-seeking culture."

Kennedy added: "We have little difficulty in finding in our own case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased's family member's remains for public purposes."

Moreover, "Family members have a personal stake in honoring and mourning their dead and objecting to unwanted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own."

My own feeling is that Harper's insensitive photographer had a right to photograph a public event in a public building. His pictures contributed to an understanding of the costs of war.

All the same, Kyle Brinlee had paid the ultimate price. Something is surely wrong when his grieving family must pay a little more.

Columnist James Kilpatrick writes on language and on the Supreme Court. E-mail him at kilpatjj@aol.com.

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