Fla. college paper appeals Earnhardt autopsy photo case to Supreme Court

FLORIDA—- The University of Florida student newspaper appealed to theU.S. Supreme Court Monday in a final effort to gain public access to autopsyphotos.The Independent Florida Alligator is appealing a Floridastate court’s ruling that denied the newspaper access to racecar driver DaleEarnhardt’s autopsy photos. The newspaper’s lawyers argue that the Florida lawbarring public access to autopsy photos violates the First Amendment.Onemonth after Earnhardt’s fatal crash at the Daytona 500 in February 2001, Gov.Jeb Bush approved the Earnhardt Family Protection Act. The law, implemented atthe behest of Earnhardt’s wife, Teresa Earnhardt, restricts access to allvideos, photos and audio recordings taken during autopsies unless a court rulesthe requester’s intentions trump the family’s right to privacy.Autopsyrecords were previously accessible under Florida’s Public RecordsAct.The law violates the First Amendment because it allows courts togrant or deny access to public records based on a speaker’s viewpoint, saidPatricia Walker, one of the newspaper’s lawyers. The Independent FloridaAlligator did not tell the court why they wanted the photos because it didnot want the court to make a value judgement on its intentions, Walker said.Tom Julin, another lawyer for The Independent Florida Alligator,said the newspaper can win at the Supreme Court because the Earnhardt act isunnecessarily broad. “The law could be more narrow and still protect theEarnhardt family’s right to privacy,” Julin said. “It could simply prohibit thecopying of autopsy photos [while still allowing the public to see them] withoutsacrificing important journalistic and legal investigations.”A Floridaappeals court ruled in July 2002 that the law was not too broad and that theEarnhardt family’s right to privacy outweighed the public’s right to know,although the court did not consider the newspaper’s First Amendmentarguments.The Orlando Sentinel originally sued for access to the33 autopsy photos they wanted to use to investigate NASCAR’s safety requirementsfor drivers. The case was settled, however, when the Earnhardt family agreed toallow an independent expert to review the photos and release a written analysisto the newspaper, after which the photos would be sealed. But TheIndependent Florida Alligator was not satisfied. In support of theSentinel’s request, they asked for the same photos under the open-recordslaw, which prompted Teresa Earnhardt to lobby the Legislature for greaterprivacy protection.”For us, it was the principle of the matter,” said JoeBlack, Editor in Chief of The Independent Florida Alligator. “Over thelast 30 years, The Alligator has won several First Amendment cases in thestate supreme court. It wasn’t out of the blue that we decided to fightthis.”The Independent Florida Alligator appealed to the statesupreme court, which declined to hear the case in July. Many thought the casewould end there, but Julin said he felt the lower courts had not sufficientlyaddressed the First Amendment issues.In the request for a hearing to theU.S. Supreme Court, Julin argued that access to public records cannot bediscriminatory. Julin cited the court’s landmark 1999 decision, Los AngelesPolice Department v. United Reporting Publishing Corp., in which the courtruled a publishing company could use police records for commercial use because agovernment agency could not deny access to public records based on therequester’s intentions.”The same thing is going on here,” Julin said. “[Under the Earnhardt act], the court has to hear a requester’s reasons beforegranting access.”Teresa Earnhardt’s lawyer, Jon Mills, told theOrlando Sentinel the court was unlikely to hear the case.”I feelvery confident about the statute,” Mills told the Orlando Sentinel. “Ifeel confident that the issues were addressed in terms of the FirstAmendment.”Mills did not return requests for comment, but previouslysaid the photos were “grotesque” and should not be accessible to prevent harm. He has cited the death of racecar driver Neil Bonnet, whose children saw hisautopsy photos online after their father’s crash at the Daytona 500 in 1994.

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