In the Face of a CNN Lawsuit, FEMA Agrees To Allow Media Coverage Of Katrina's Dead:
If the Case Had Proceeded, Who Would Have Won, and Why?

This is one in a special series of columns on legal issues arising in the aftermath of Hurricane Katrina. - Ed.

Last Friday, September 9, CNN filed suit against the Federal Emergency Management Agency (FEMA). CNN challenged, as a First Amendment violation, FEMA's policy to prevent media coverage of the victims of Hurricane Katrina.

The pressure had, at first, been described as a "request." This move, alone, raised First Amendment hackles - with critics claiming this is just the kind of direct content control that government constitutionally cannot impose on the media.

Doubtless feeling their speech rights to be threatened, many media outlets rightly refused to honor that request: For instance, photos of floating bodies, and cloth-covered bodies on land, ran in the New York Times and other mainstream media.

Perhaps for this reason, on Friday morning, the "request" was converted into a formal "zero access" policy. Announcing the policy, were the director of the federal relief effort, Army Lt. Gen. Russell Honore, and New Orleans homeland security director Terry Ebbert.

On these facts, CNN sued in federal court in Houston. U.S District Judge Keith Ellison granted a temporary restraining order (TRO) against enforcement of the policy, until a full hearing could be held the next day.

But the next day -- Saturday, September 10 - before the judge could rule on the matter, the government reversed itself, and retracted its policy.

If the government had stuck to its policy, would it have lost in court? Very probably - especially since it made the mistake of converting its "request" into an outright ban. But CNN would still have had the burden of proving its case to permanently prevent enforcement of the policy.

The Initial Hurdle: Proving State Action

By converting its request into an all-out ban, the government hurt its own case in court - perhaps fatally.

Without an outright ban, CNN would have been faced with the initial hurdle of proving that the pressure was strong enough here to count as "state action." Constitutional rights are enforceable against government actions, and generally not against government speech, except insofar as that speech has the force of law.

And there's a good reason for that: Government, generally, ought to be able to say its piece, too, to try to influence the citizenry -- and even the media -- without getting sued simply for articulating its views.

Free government speech, too, is essential in a democracy.

Before the government's request turned into a zero-access policy, was it already "state action"? Or, put another way, did FEMA's words have the force of law? That depends on whether FEMA's agents enforced them.

Did FEMA truly "request" the media to desist, as a spokesperson's email said? Or was it telling them, in no uncertain terms, to do so?

And what happened if a particular photographer refused to comply? Were photographers kept off FEMA boats unless they promised to follow FEMA rules? Did FEMA's coordination of the rescue efforts otherwise create pressure to comply - with promises not to photograph the dead, traded for access?

Answers to questions like these would have been needed, but the government's express declaration of a zero access policy mooted the need for such factual inquiries.

Why CNN's Suit Against the "Zero Access" Policy Was Extremely Strong

Once the government itself had resolved the "state action" question, CNN's case was extremely strong - for several reasons

First, as CNN pointed out, the policy was what is known as a "prior restraint": Rather than punishing violations through the criminal or civil law, the government was ensuring, by denying access, that journalists had no means to cover retrieval of bodies in the first place. The law's extremely strong preference is to allow photographs to take pictures, and writers to write, first - and to let the government try to punish them, based on the specific facts, later.

Second, this is the kind of speech that the First Amendment was written to protect. There's no denying that Katrina has been a huge political bombshell. And the Supreme Court has many times said that speech on political issues is at the very core of the First Amendment. Freedom of the press embodies that principle by protecting the media's ability to expose the secrets of government and inform the American people - as Justice Black suggested in his concurrence in the Pentagon Papers case.

What If There Had Been No "Prior Restraint" Issue Here?

CNN's case, for these reasons, was too strong for FEMA to overcome, once the request had been converted into a ban. Courts almost never approve prior restraints.

But what if, instead of mandating a zero-access policy, the Katrina responders had convinced Congress to pass civil or criminal penalties for taking any photographs of any dead body, if the photos were procured without the next-of-kin's consent?

There would not be a prior restraint issue. And there would be at least some precedent: Some state laws keep autopsy photos private, for instance. For these reasons, the First Amendment issue, in this hypothetical situation, would be more difficult than in the actual case CNN brought.

Are the Government's Interests In Protecting Privacy and Sensibilities Compelling?

A court hearing the issue, in this hypothetical situation, would have to ask: Is there a compelling interest here? And if so, is Congress's measure narrowly tailored to further it?

Many thought the government's real interest here was in image control - and other incidents occurring during the same time, gave fuel to that argument. For instance, a Salt Lake Tribune article reported that highly-trained firefighters who wanted to work to directly help victims, were asked instead to be "community relations officers" doing nothing more than giving out FEMA's 1-800 number. (Firefighters were also seemingly recruited for a photo op with President Bush, instead of contributing to rescue efforts.)

But for the purposes of argument, let's take FEMA at its word as to what its real interests were - and assume, too, that in passing this hypothetical legislation, Congress would have the same interests in mind.

What, then, did FEMA think was at stake here? Reuters reported that a FEMA spokeswoman wrote an e-mail, explaining the initial request that photographs of the Katrina dead not be taken, stating, "The recovery of victims is being treated with dignity and the utmost respect…" She seems to have been suggesting that the government's real interest was in ensuring that the dead have "the right to be left alone" - the quintessence, that is, of the right to privacy.

This right seems arguably more intense here because the deceased victims may have been forced to flee, or even been swept right out of, their homes. They - unlike, say, a person who commits suicide from a bridge -- did not in any way choose the publicness of their deaths. And had they been dying at home, and had unauthorized photos been taken through the window, they would have had a clear tort suit, based on a privacy cause of action called "intrusion on seclusion" (as well, as perhaps, a valid complaint of trespassing).

Doubtless, some of the victims -- if they somehow had known this might happen beforehand -- might have been horrified to know their photos would be printed. Some, though, might have applauded the photography, as documentation of their plight, or even as a reproach to those who failed to save them. And the privacy worries of the former, are arguably counterbalanced by the interests of the latter in publicity.

FEMA may also have in mind, as well, an interest in protecting the sensibilities of relatives of the deceased. As Mark Tapscott, a media expert at the Heritage Foundation, pointed out to Reuters, after the initial FEMA request was made, "Nobody wants to wake up in the morning and see their dead uncle on the front page."

Are these interests compelling enough to overcome First Amendment rights? I will address them in turn.

Privacy Claims, Under Free Speech Law, Must Give Way to the Public Interest

Arguably, there's no need for the government to add any special protection of victims' privacy here: The civil law already protects privacy; aggrieved victims can sue; and media lawyers will counsel their clients to desist if their photographs go over the line.

Interestingly, though, that's not the advice media lawyers seem to be giving. To the contrary, the media entities that have taken, and published, Katrina photographs, seem to have little fear that they actually might be sued by the families of victims, or the victims' estates, for violations of privacy.

And they're probably right not to be afraid.

There are two basic kinds of privacy claims that can be brought when private photos, or texts about private information, see the light of day -- and when the person suing is the subject of the photo or text, but does not hold the copyright. And both have exceptions for material that is in the public interest.

One possible kind of claim is based on the "right of publicity," the right to make money from the use of one's image. But, quite purposefully, this right - often a creature of statute - typically targets commercial, not news images. (And this is true even though, of course, news images also make money for the photographer.)

Another possible kind of claim is based on a simple, classic invasion of privacy tort that has long existed: the tort of public disclosure of private facts. But this kind of tort, like a right of publicity cause of action, has been constructed - this time, by courts, not legislatures -- precisely to avoid interfering with legitimate newsgathering. Typically, thus, such torts carry an exception when there is a legitimate public interest in the material photographed.

As I discussed in a prior column, one can argue, in some cases, about what kind of interests are legitimate, and public. But here, surely the interest in showing the toll of Hurricane Katrina is both legitimate, and one that belongs to the public: a public trying to understand the magnitude and causes of the loss and damage, and to assess who is responsible. (Again, the balance in the case of, say, Hurricane Andrew, where far less blame was placed on the government, might be struck differently.)

And it's far too late in the day to argue that text, alone, can be a full substitute for photographs. Larry Siems of the PEN American Center made the point eloquently when he told Reuters, "It's impossible for me to imagine how you report a story whose subject is death without allowing the public to see images of the subject of the story."

In sum, the standing exemption of "public interest" photos like the Katrina photos from civil privacy claims, shows that the government's interest in protecting privacy here is weak.

Of course, one could argue, to the contrary, that these exemptions are a gap in the law - a gap that shows why the government had to step in. One could argue, in other words, that where state laws are insufficient, Congress should step in.

But I think that, instead, the more persuasive argument is that over many years, in tort law, we as a society have carefully drawn a privacy line, and there's no good reason for the government, now, to re-draw it.

"Offended Sensibilities" Claims Are Anathema to the First Amendment

But what about the additional interest that Mark Tapscott cited - the interest in avoiding relatives' horror if they see their loved ones' bodies in news photos, before they learn of their whereabouts?

This interest might arguably justify asking for next-of-kin consent before photos of the dead are taken, and if kin cannot yet be located, in holding off from either photography or, at least, publication. But certain material, even then, ought to be outside the consent requirement: A photo, or some footage, that shows bodies face-down in the water, or covered, or from a distance, or with blurred-out faces, is not likely to lead to instant identification of the deceased.

This interest in protecting relatives' sensibilities must be addressed, and it's a weighty one. But is it weighty enough to overcome the First Amendment rights here, and the strong public interest in which they are grounded? I don't think so.

There are several reasons. Obviously, I don't mean to be insensitive, and I understand that such an experience could be particularly horrible. My point is just that, in the circumstances of Katrina, the alternative, for many, may be almost equally gruesome.

Is it really so much worse, when one's relative is missing, to recognize a body in the paper, than to recognize it during a guided tour of a host of slabs on which the dead lie - seeing in the process, many strangers' lifeless forms? Tragically, it seems that just such a tour may be the fate of many relatives.

Finally, while the offense and shock to relatives is a genuine and very serious concern, it is not the kind of concern the First Amendment tends to accommodate - and for good reason. To begin to go down the road of regulating speech (including photographers) based on whether it will offend, or cause other emotional reactions in viewers, is to court censorship.

It is not fair, here, to tell the offended just to turn away: The sight of a relative's dead body can be indelible.

But it is right to uphold the principle that what all can see and read, cannot be limited by the way some group - even a very sympathetic group, like victims' relatives - will react, emotionally, to the same photograph or text.