On June 5, the Connecticut legislature passed a law banning the release of crime-scene photos and videos from the tragic massacre that occurred at Sandy Hook Elementary School, in Newtown, Connecticut, on December 14, 2012; and from other Connecticut homicides.
Connecticut lawmakers passed the bill into law because they were concerned that without such a law, those photos and videos of what occurred in Newtown would rapidly appear on the Internet, where they could be accessed by anyone, potentially forever, thus causing the children’s families great pain. Accordingly, the legislature carved out an exception from the State’s Freedom of Information Act (FOIA), reaching the photos and videos at issue. Governor Malloy subsequently signed and commented on the bill, noting that “[A]ll families have a right to grieve in private.”
The Key U.S. Supreme Court Case in This Area of Law
A U.S. Supreme Court case from 2004, National Archives and Records Administration v. Favish is clearly the key precedent here. In that case, the Supreme Court unanimously rejected a man’s request, made via FOIA, for—among other things—ten death-scene photos of Vincent Foster, Jr., who had served as a Deputy White House Counsel to President Clinton, and before that, had been Hillary Rodham Clinton’s law partner, and whose death, in 1993, despite its being deemed a suicide by the coroner, had fostered many far-fetched and bizarre conspiracy theories nonetheless.
The Court unanimously rejected the man’s request for the death-scene photos of Foster, which was based on the federal version of the Freedom of Information Act (FOIA). That was because, unfortunately for the requester, FOIA has an exception, Exception 7C,which the Court invoked, for “records or information compiled for law enforcement purposes” if their production “could reasonably be expected to be constitute an unwarranted invasion of personal privacy.” Accordingly, the Court held that “FOIA recognizes surviving family members’ right to personal privacy with respect to their close relative’s death-scene images.”
The Court also held that “when such privacy concerns are present, the requester must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and that the information is likely to advance that interest.”
The Court also remarked on how longstanding this rule has been: “The well-established cultural tradition of acknowledging a family’s control over the body and the deceased’s death images has long been recognized at common law.”
Thus, the new Connecticut law has joined a long tradition of the law’s allowing exclusive familial control of death images. This legal rule seems appropriate now, but it may not last forever, as I will explain.
Will the Legal Rule of Giving Families Control, and the Practice of Keeping Death Photos in the Family Both Continue on in Future Generations?
It will be interesting to see what later generations—raised on Facebook, and living semi-publicly as a result—will think about the current legal impossibility of the media’s procuring and publishing death images.
Some among these future generations may want their death photos circulated to everyone they know, should they die, because they may see their deaths as simply part of the stories of their lives.
In addition, some may feel that not only their families, but also their many friends should have access to their death photos, in order to gain a sense of closure—to know viscerally that a loved one is truly and completely gone. And conversely, some who are estranged from their families may want their families, rather than having a right to see their death photos, to be banned from ever seeing those photos.
Some among future generations also may also want their death photos circulated in the event that they are murdered, in order to spark public outrage; to convey the reality of murder; and to fuel the hunt for the killer to be brought to justice. Such images might well add more intensity and public pressure to the investigation.
In sum, the current default rule that families alone control their members’ death photos may well ultimately give way, someday, to a menu of options giving us choices about our death photos that we can exercise in advance. Thus, once we come of age, our menu of options may obviate the need to recognize, as the Supreme Court has, surviving family members’ right to personal privacy with respect to their close relative’s death-scene images. All the focus on surviving family members, in this context can be completely obviated if we all make our own wishes clear ahead of time.