Download Magazine - Levin College of Law - University of Florida

■ A case in which an expectation of privacy in the seclusion
of oneʼs own bedroom was not considered reasonable when
the individual was involved in a lesbian relationship and in
a child custody fight with her husband.
■ A medical examiner who allowed a cable network film crew
to follow him to a hotel room where a woman had been
thrown to her death from the balcony by her husband, who
then died when he fell or jumped. The film crew recorded
the crime scene, including the womanʼs dead body, and the
next morning shot photos of the nude bodies.
■ President George W. Bush, who late last year issued a
“presidential signing statement” related to a Postal Service
bill, which said a subsection of the Postal Accountability
and Enhancement Act “provides for opening an item of a
class of mail otherwise sealed
against inspection.”
Baldwin sees the Postal
Accountability and Enhancement
Act as “the final nail in the
coffin”—the latest in a series of
invasive steps taken in the wake of
9/11 by the Bush Administration
to trample on individual privacy
rights in the name of national security and the ongoing war on
terrorism. Baldwin called Bush “the poster child for mission
creep,” a term used to describe the expansion of a project or
mission beyond its original goals.
“It goes on and on,” Baldwin said. “Itʼs so embarrassing
that if you wrote this as a law exam they would throw you out
of the room. Police states donʼt even go this far. The principle
in each of these acts and beginning with the Patriot Act is to
ignore the third branch of government. Theyʼre trying to keep
out the judges. The attorney general in speaking to this act
and the Military Commissions Act, in effect, said the federal
judges ought to take note that theyʼre secondary in this war
against terrorism.”
EARNHARDT FAMILY SPEAKS UP
Those concerned with privacy have scored the occasional
victory, however, perhaps most notably in 2001 when the
Florida Legislature passed a law known as the Earnhardt Family
Protection Act. The bill, named for NASCAR legend Dale
Earnhardt, who died when his car crashed into the wall of the
final lap of the 2001 Daytona 500, made autopsy photographs,
video and audio recordings confidential. Violators could be
charged with a third-degree felony that could be punishable by
jail time and up to a $5,000 fine. Mills, one of the lawyers who
represented the Earnhardt family, said they were concerned
that photos from Earnhardtʼs autopsy would be published in
newspapers or websites.
“They donʼt care whether The New York Times doesnʼt
publish it but the National Enquirer does,” Mills explained.
“The damage to the family is the same.”
Still, some have problems with the law, including Thomas,
a media lawyer whose clients must struggle to abide by it.
In the race for profits,
compassion still
has a fighting chance.
Thomas noted that the push for the law came about after the
Orlando Sentinel wanted to review the photos of Earnhardtʼs
autopsy specifically to examine the damage to his neck in an
effort to determine whether Earnhardt may have survived had
he been wearing a Head And Neck Support (HANS) device,
which was used by only six drivers in the 43-car field in the
Daytona 500 that day.
“So the purpose for looking at the photograph or looking at
Dale Earnhardtʼs dead body was totally legitimate,” Thomas
said. “And for 50 years in Florida, as long as weʼve had a
photographer, the press has had access to autopsy photographs,
and never once, not one abused situation.”
Griffin, who sat on the case, said the Earnhardt family was
unique in its ability to get the Florida Legislature, which has
control over public records, to enact
a statute that retroactively forbade
the publication of the photographs.
“What the media accomplished
was to make far more confidential
that which historically had not
been confidential,” she said. “My
position has always been that the
media runs the risk—through its
enthusiastic support of Internet access to court records and
all of this—that the Legislature, as these things come to their
attention, will enact more legislation that will make these
things completely confidential.”
STANDARDS QUESTIONED
Still, the game has changed, or rather, come full circle.
The days of Ben Franklin and the “citizen journalist,”
Thomas pointed out, eventually gave way to huge media
conglomerates. Now, with the proliferation of personal
Internet sites and the blogosphere, weʼre in some ways back
where we started. But does that necessarily mean the rules of
journalism are also changing
“Media ethics is not an oxymoron,” Foley said. “I believe
that in responsible newsrooms—and maybe there are a
dwindling number there, I donʼt know—but every bit of
information is weighed on its own. Do we publish this Does
this meet our standards There are no standards on the Internet
… and thatʼs a very grave danger.”
While many may assume the media will publish just
about anything to draw readers or viewers or clicks to their
websites, Foley believes otherwise. Many more photos
and stories come to the attention of editors that are never
published. In the race for profits, compassion still has a
fighting chance.
“These are debated and debated, and one editor will
argue one thing and another editor will argue another thing,”
Foley said. “And finally it gets down to the executive editor
and then he lies awake all night with his stomach hurting.
Does the public need to know this Itʼs all public record. But
does the public have to know this Do I ruin all these
peopleʼs lives” ■
10 U F L A W