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Florida Circuit Court Deals Double-Edged Blow to Public's Right to Know


Contacts: Ray Marcano, SPJ president, 937/225-2323 or; Ian Marquand, SPJ Freedom of Information Committee chairman, 406/542-4400 or

INDIANAPOLIS A Florida court twice dealt a blow to the public this week by declaring constitutional a new state law banning the release of autopsy photos and then refusing to allow the media to examine them.

"The law says a judge has to decide whether a media organization can see the photos, and that makes one man the judge, jury and editor," said Ray Marcano, SPJ president and an assistant managing editor at the Dayton (Ohio) Daily News. "There is no thoughtful process in place that balances the public's right to know with the need for privacy. All we have is an emotional response to a difficult issue, and that response doesn't serve the public at large. Florida courts should take emotion out of the equation and overturn this short-sighted law."

On Monday, Volusia County Circuit Judge Joseph Will ruled that the law, known as the Earnhardt Family Protection Act, is constitutional. Passed shortly after the death of NASCAR driver Dale Earnhardt, the law makes it a felony for anyone except the victim's family or law enforcement officials to see autopsy photos without a judge first granting access to other parties for a "good cause." Previously, autopsy photographs were considered public record in Florida.

The judge issued his second short-sighted ruling Wednesday in a hearing when he determined that the student-run Independent Florida Alligator and the Web-site operator Michael Uribe -- who runs -- would not be allowed to view the Earnhardt autopsy photographs. Wills said the news organizations did not show a convincing reason to view the photos and granting them access to the photographs would violate the Earnhardt family's privacy.

"What we've warned against now has become reality," said Ian Marquand, SPJ Freedom of Information chairman and special projects coordinator at KPAX TV in Missoula, Mont. "Florida judges now are gatekeepers of public information and will let in only those who meet their standards of 'decency,' public interest be damned."

The Orlando Sentinel and the South Florida Sun-Sentinel filed a lawsuit in March asking the circuit court to declare unconstitutional and prevent enforcement of a new state law, passed shortly after Earnhardt's Feb. 18 death, that prevents the public and the media from viewing autopsy photos.

The Independent Florida Alligator and Uribe have been seeking access to the autopsy photos since the law was passed.

The Florida newspapers are planning to appeal the circuit court ruling, and SPJ is strongly urging the appellate court to overturn Will's decision.
The Independent Florida Alligator and Uribe also are expected to appeal the judge's decision in the hearing. The Society also supports this battle and has contributed a $1,000 Legal Defense Fund grant to the Alligator's legal effort.

The standoff over the Earnhardt autopsy photographs began when Earnhardt's family asked a judge to keep the medical examiner's records confidential, and the Florida court system supported that request. After private mediation, the family allowed a medical examiner to review the photographs for the Sentinel -- which had been investigating the safety of NASCAR racing before Earnhardt's fatal accident -- but no other media or members of the public were granted access to the photographs. The medical examiner reviewed the autopsy photos March 26.

SPJ has been at the forefront of media organizations across the country offering support for the rights of the public and members of the media to view autopsy pictures. Marcano, SPJ president, granted interviews to several national media outlets on SPJ's support of the Sentinel's efforts to gain access to the photos. The most recent interview was today on FOX News, in which Marcano discussed the Society's view of this week's rulings on access to Earnhardt's autopsy photos.

For a story on the circuit court judge's constitutionality ruling, visit

For a story on the judge's ruling in the hearing, visit

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