June 1, 2007

Publishing Funeral Photos of Soldier Killed in Iraq Not an Invasion of Privacy

Holland & Knight Newsletter
Trisha M. Rich

The U.S. Tenth Circuit Court of Appeals recently ruled that the family of an Oklahoma National Guard member killed in Iraq, whose open casket was photographed by Harper’s Magazine, did not have a valid lawsuit against the magazine.

In Showler v. Harper’s Magazine, Sgt. Kyle Brinlee’s father, Robert Showler, sued the magazine and photographer Peter Turnley for a number of claims, including invasion of privacy and intentional infliction of emotional distress. The U.S. District Court for the Eastern District of Oklahoma granted the magazine’s motion to dismiss, and on March 23, 2007, the Tenth Circuit Court of Appeals upheld that decision.

In August 2004, Harper’s Magazine ran a photograph of Brinlee’s open casket. Brinlee had been the first member of the Oklahoma National Guard to be killed in action since the Korean War, and as a result, Brinlee’s death and funeral were the subject of intense media coverage. The family had allowed the media to attend, but had asked that no one photograph Brinlee’s open casket, and that no one interview members of the family. Turnley, an international photojournalist working on assignment for Harper’s, took the photos.

In granting the motion to dismiss, the district court noted that the family held a public funeral, which was attended by more than a thousand people, with a reserved section specifically for the press. The district court concluded that the defendants enjoyed First Amendment protection because the photograph was taken in a public place for a newsworthy article and therefore none of the family’s claims could succeed. The family appealed the decision to the Tenth Circuit, arguing that although the funeral was open to the public, there had been specific instructions that photographs of the open casket were not allowed.

In affirming the district court’s decision, the Tenth Circuit did not rely on constitutional grounds, but rather affirmed that summary judgment was appropriate on the merits of each of the tort claims the plaintiffs brought. First, the circuit court held that the intentional infliction of emotional distress claim must fail because the defendants did not engage in any extreme or outrageous conduct. The circuit court based this finding on the plaintiffs’ decision to have an open casket, coupled with the photo’s accurate depiction of the exact image that the plaintiffs chose to expose to the approximately 1,200 people who attended the public funeral.

The plaintiffs had included three separate invasion of privacy claims, and the Tenth Circuit summarily affirmed the dismissal of each. The circuit court concluded that the first privacy claim, for commercial misappropriation, failed because the image was used in connection with a matter of public concern. The second privacy claim for publication of private facts failed, as the circuit court agreed with the district court that the photos contained no private facts about their lives – and no private facts at all, because the plaintiffs opened the funeral service to the public – and were protected publications of a newsworthy event of legitimate concern to others. The final privacy claim was intrusion upon seclusion, which requires a nonconsensual intrusion highly offensive to the reasonable person. The circuit court concluded that no reasonable jury could have found that the intrusion was highly offensive to a reasonable person, since the funeral was open to the public.

The Tenth Circuit’s opinion concluded with the statement that, “[w]hile it could be argued that publication of the [photograph] without prior authorization was in poor taste, for the reasons discussed, it does not constitute an actionable claim under any of the theories advanced by Plaintiffs.”

For more information, e-mail Trisha M. Rich at trisha.rich@hklaw.com or by calling toll free, 1.888.688.8500.

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