A Faustian Bargain   

Agreement on Earnhardt autopsy photos could lead to future press restrictions.

W E HAVE BEEN AROUND this track before.
A beloved celebrity dies in a spectacular car crash. Stunned fans pay tribute to the departed and pledge their unconditional love and support for the deceased's attractive young son, who they hope will carry on with his parent's work. A flurry of media attention, seen by some to be both tasteless and ghoulish, follows. The public reacts with fury and scorn, and indignant legislators vow to pass new laws to make sure that privacy is protected at all costs.
This scenario followed the death of Princess Diana in a Paris tunnel, and it's happening again, after the death of NASCAR driver Dale Earnhardt on a racetrack in Daytona Beach.
The circumstances of Earnhardt's death raised questions. The Daytona International Speedway doctor said the driver died after his seat belt malfunctioned, causing fatal head injuries when his face hit the steering wheel. Other doctors say that Earnhardt died as the result of "head whip," an injury that recently took the lives of three other NASCAR drivers, and which might have been prevented by head-restraint equipment.
The Orlando Sentinel decided to try to find out for itself, and asked to see copies of Earnhardt's autopsy photographs to have them evaluated by an independent expert. Autopsy photographs were open records under Florida law and had been examined by newspapers before. The Sentinel presumably anticipated that there would be no problem in getting them.
But once Earnhardt's family got wind of the Sentinel's mission, they swung into action, firing the lawyer who advised them that the photographs were public and retaining another attorney who vowed to fight in the courts and the Legislature to keep the photographs secret.
State Circuit Judge Joseph Will issued an order temporarily sealing the photographs. Florida legislators introduced a bill, inevitably dubbed the "Earnhardt Family Protection Act," to deny access to autopsy photographs to most requesters and to turn the release of what have long been public records into a third-degree felony. Spectators watched to see which branch of government would cross the secrecy line first.
Meanwhile, the media scrambled to explain to outraged fans why the principles at stake went far beyond one family's tragedy, or a plea for privacy. They argued that an independent examination of the photographs might help raise safety issues that, in turn, could help avert other deaths. That's what open government and a free press are supposed to be all about.
But this argument, compelling as it might seem to journalists, strikes many people as too speculative to justify the risk of what the Earnhardts' lawyer characterized as a virtual certainty: that even if the Sentinel abides by its promise not to publish the autopsy photos, they will inevitably find their way to the Internet, to be gawked at by casual Web surfers. What possible public interest could be served by that?
About a month after Earnhardt's death, the newspaper and the family reached an agreement: A medical expert, to be chosen by a court-appointed mediator, would be allowed to view the autopsy photographs. Then the photographs would be sealed. Although the settlement is binding only on the Sentinel and the other news organizations that joined in the suit, in practical terms, the case for access is probably over.
On March 29, Gov. Jeb Bush signed the restricted access bill into law. Within days, the Independent Florida Alligator, a student-run newspaper based at the University of Florida, and Websitecity.com filed suit to challenge its constitutionality.
The Earnhardt case exposes the Achilles' heel of all freedom of information acts. A record can't be a "little bit" public. Once it is released, whether it memorializes a driver's license or an arrest, the government loses the ability to control it. The U.S. Supreme Court has consistently found that the First Amendment thwarts any attempt to restrain further dissemination or use of public information. The only recourse for government is to withhold it in the first place.
In the face of that alternative, it may seem expedient, or even honorable, for a news organization to offer to censor itself voluntarily in exchange for limited access to public information. But it's a Faustian bargain. As James Madison said in 1822, "people who mean to be their own governors must arm themselves with the power which knowledge gives." Keeping public documents open is, in the end, a means of keeping government under control. Once you've surrendered the principle of an absolute right to access, you've made it that much easier for the government to decide next time that it is wiser to seal a record rather than take a chance that someone will use it for an "improper" purpose.