When I was a Boy Scout, I remember getting my Totin’ Chip
card, which gave me the right to use a knife and an axe as part of scouting
life. In one part of the card, it explained the rights you garnered, but on the
other half, it talked about the responsibilities you were required to live up
to. I thought about that today as I read through the discussion on this topic,
primarily because I wonder how much we tend to think about our rights, but
maybe not our responsibilities.
As an ardent defender of free speech, I’m having trouble
with this because I hate the idea of siding with either side. I can’t imagine
anything good out of either side winning, so here’s the information and I’ll
let smarter people than me figure it out:
A Georgia judge blocked the release of photos taken of
Meredith Emerson, a hiker who was found nude and decapitated. A writer for
Hustler magazine had sought the photos as part of a request for open records.
After the judge blocked the request, a representative for Hustler said the
magazine is reviewing its legal options.
The same day the ruling came out, the state’s Governmental
Affairs Committee passed a bill that will be sent to the house, barring the
release of graphic photos of crime victims. The “Meredith Emerson Memorial
Privacy Act” is likely to cause a stir once it hits the legislature, although
no one has made any bets as to how likely it will be to pass.
The inherent pull between the right to full disclosure of
documents controlled by a government agency (in this case, police photos) and
the government’s desires to keep documents private is as old as the hills.
First Amendment advocates argue that you can’t suppress a documents simply
because you don’t like the content. Governmental bodies have argued that there
are things that need to happen as a matter of course that serve no public good
in seeing, regardless of the broadest possible interpretation of the law.
The two key underlying issues here, obviously, are the
magazine and the content. You can’t say “I’m sorry, your publication sucks.
Therefore, you have no right to this public document.” As a student media
adviser, I heard variations on that theme for years. My favorite was “You’re
not a REAL newspaper. You’re just students.” And yet the inherent sense that
certain media outlets are more important, more valuable and more “worthy” to
obtain records often leads the conversation astray. If the New York Times were
asking for this stuff, this first issue wouldn’t be an issue.
Just as much as you can’t say “no” because of who is asking,
you sense that you can’t not say “no,” based on their track record. It’s like
trusting the student who has skipped class 10 times already when they tell you
they can’t make class because their grandmother has died. You want to support
the kid and yet you can’t tear your mind away from the idea that this is going
to end poorly.
The second underlying issue is the content. We do limit
records that can be released in a number of ways and for a number of reasons.
Most of those reasons are germane to the content. For example, as a public
employee, my salary is an open record. On the other hand, my personnel file and
my medical file are not. You could make the argument that what I make is not
nearly as important as if I’ve got a mental disorder that could lead to me
harming a student. You could also argue that a personnel file contains much
more telling and vital information than a salary document. Still, we protect
these things for a number of reasons.
However, over the years, we’ve eroded the number of things
that can be released and in most cases it boils down to this: “That’s icky. No
way.” I’m in no way diminishing the sense of loss or the damage that these
photos might cause to the family of Meredith Emerson, but I am saying that
taste has become a determining factor in what we do or do not release.
The underlying problem with that argument is that tastes
differ and there’s always that slippery slope argument. I’m not a fan of either
concepts, but they both exist in some way or another. In the end, as a defender
of free speech, I worry that soon police reports will not be released due to
their graphic nature or that minutes from particularly tense meetings won’t be
released because of graphic or foul language.
I have a strong sense that the only thing Hustler was
thinking about was, “Hey! Nude dead chick! We can make some money and get some
press!” However, the magazine has won important court cases regarding the
publication of material that was previously banned. I think in many cases,
Hustler and other fringes of our journalistic world think about their rights,
but maybe not so much their responsibilities.
When theory and practice clash, it tends to be messy. I hope
that the right thing gets done, even though I’m not sure there is such a thing
in this case.