Newtown photos barred: Did lawmakers balance privacy, public's right to know?

The Connecticut legislature passed a bill Wednesday restricting the release of crime-scene photos of the Newtown victims. The law brought relief to family members, but it's also prompted concerns among civil liberties groups.

In the wee hours of Wednesday morning, the Connecticut legislature passed a bill restricting the release of official photos and videos of victims at the Sandy Hook Elementary School massacre. 

The decision brought great relief to many family members in Newtown, who have raised concerns about their privacy and the potential for the exploitation of graphic images of their loved ones online. But it has also prompted concerns among media organizations and civil liberties groups, which argue that keeping records related to crimes open to the public has an important value in a free society.

Indeed, it can be difficult to strike the right balance between privacy and the public’s right to know. To deal with these issues, the new law sets up a task force that is to make recommendations by Jan. 1.

“Everyone in the news media is going to be sympathetic to the plight of the families. It's not my sense that traditional news organizations would exploit the photos, but it’s a brave new world online, and there are those who would post things that would horrify most viewers,” says Ken Paulson, president of the First Amendment Center, which is based at the Newseum in Washington.

Since the First Amendment prevents the government from stopping publication of most material, he says, “you’ll increasingly see efforts by legislators to limit access” in the first place, since each state government can control the release of public records.

Connecticut Gov. Dannel Malloy (D) applauded passage of the bill, saying in a statement Wednesday that “those who lose loved ones to violence have a right to protect themselves against further anguish.” He also acknowledged that the issue requires “all of us to balance deeply held beliefs and important public policy values.”

The new law will create an exemption to the state’s Freedom of Information Act, preventing the release of photos, videos, or other visual images depicting homicide victims (not just those at Sandy Hook) if the records “could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.”

It also puts a one-year moratorium on release of audio recordings that describe the condition of victims. The law does not include protection for 911 recordings.

The language of the law seems overly broad to Mr. Paulson, who says these kinds of restrictions are “dangerous” because “the public has a very real interest in understanding how fellow citizens have lost their lives.”

 It’s not the first time a state legislature has acted to restrict access to public records in the name of privacy rights.

In Florida, following the 2001 death of Dale Earnhardt in a race-car crash, lawmakers exempted autopsy photos from the public-records law unless released by a family member or judge, and the Florida Supreme Court upheld the law. The Orlando Sentinel had wanted access to the photos to independently verify the reported cause of death, because there was a question about whether the use of a head-and-neck restraint device could have saved his life, The Florida Times-Union reported.

Also, Georgia passed the Meredith Emerson Memorial Privacy Act in 2010 to restrict access to certain crime-scene photos, after Hustler magazine requested photos of the brutally murdered woman.

“We’ve always had people who would use information to be spiteful or hurtful, [but] I don’t think closing off government records is the best way to fight against that baser human tendency,” says Sonny Albarado, president of the Society of Professional Journalists, which sent a letter in conjunction with its Connecticut chapter to Governor Malloy, objecting to the new legislation and the fact that it was crafted without public hearings.

Connecticut journalism associations also sent a joint letter to Malloy, stating in part: “While many tragic events have made us question whether the disclosure of information is always in the best interest of a society, history has demonstrated repeatedly that governments must favor disclosure. Only an informed society can make informed judgments on issues of great moment.”

Eight family members of victims posted a petition on the website Change.org, which attracted more than 105,000 supporters of the law. The petition cites other precedents such as the withholding of images related to the scene of the shooting of then-Rep. Gabrielle Giffords in 2011 and the death of deputy White House counsel Vince Foster in 1993.

One online comment supporting the petition, by organizer Nicole Hockley, reads:  “Dylan is my son. I want to preserve his memory as a beautiful boy – not as a gun-riddled corpse. I also do not want his brother Jake to see these photos or listen to the execution of his brother, friends and teachers on 911 tapes.”

While sympathetic to such pleas from family members, Mr. Albarado says one also has to think about “the harm to society by being euphemistic or hiding from the public in general the facts of the situation.”

The National Center for Victims of Crime supports a balance between information and privacy, noting that victims and their families are served well when the media and others can be watchdogs to ensure high-quality investigations. “The Connecticut legislature hit a very difficult balance” in this case, says executive director Mai Fernandez.

Because images of a victim right after he or she has died can retraumatize family members, it’s reasonable to have restrictions, but a task force will reexamine how the law is being implemented so that “if it denies access to lots of [Freedom of Information] requests, they can amend it,” Ms. Fernandez says.

The Newtown tragedy has become highly politicized, particularly regarding the debate over gun laws, which worked its way into discussions of this law because the Change.org petition claimed that “Michael Moore and the hoaxers want to publish this gruesome information.”

Mr. Moore, who made a documentary about gun violence and the Columbine shootings, vigorously denied that statement in an interview with The Hollywood Reporter earlier this week. He said he had no desire to use such images.

A piece he wrote for The Huffington Post earlier this year was misinterpreted, he said, but in it he had simply raised the idea that images from the Newtown crime scene are likely to make their way onto the Internet at some point. If such images surface, he noted in that article, Americans should look at them to confront the nature of what guns can do to the human body.

He also cited examples of other disturbing images that prompted citizen movements to change society – such as photos of the body of Emmett Till, an African-American boy who was mutilated and murdered in 1955, and images of civilian massacres during the Vietnam War.

• Associated Press material was used in this report.