Widow’s testimony wins over judge on Earnhardt photos

From the Summer 2001 issue of The News Media & The Law, page 35.

Despite efforts of local and national media, a Florida judge determined that autopsy photographs of the late NASCAR driver Dale Earnhardt will not be released, a decision he says will protect the privacy interests of Earnhardt’s surviving family.

Teresa Earnhardt, the driver’s widow, took the stand to ask Judge Joseph Will not to release the photographs because they were “humiliating, disgusting and negative.” Earnhardt’s testimony seemed to have a strong effect on the judge’s order.

“There is no question in the mind of the Court that the violation of the privacy of this family is significant,” Will, a Circuit Judge for the 7th Judicial Circuit in Volusia County, said June 13.

“The harm which could come to Ms. Earnhardt alone is sufficient under the testimony in this particular case to consider the seriousness of the invasion to be of the highest degree. When her 12-year-old daughter is factored into the decision there is no question whatsoever of the seriousness of the harm that could come to her immediate family,” he said.

Two days prior to the ruling, Will validated a state law enacted in March prohibiting access to autopsy photographs without a judge’s approval. The judge ruled that under the Florida constitution the law passed after Earnhardt’s death could apply retroactively to the autopsy photographs of him. The Florida Society of Newspaper Editors, the Florida Press Association and the Reporters Committee for Freedom of the Press had submitted a friend-of-the-court brief, arguing that the new law is unconstitutional.

The law was enacted at Teresa Earnhardt’s request after the Orlando Sentinel asked to view the photos to help determine how Earnhardt died.

Will’s validation of the law left attorneys for the University of Florida’s student-run newspaper, the Independent Florida Alligator, and a Web site operator to argue that the law required the judge to release the records.

Attorneys for the news media argued that the records should be made public so experts can review the cause of Earnhardt’s death in an attempt to prevent similar deaths on the NASCAR circuit.

In February 2000, the Orlando Sentinel brought a lawsuit against the Volusia County medical examiner after the examiner denied the newspaper’s request to view the autopsy photographs of Dale Earnhardt. The Sentinel eventually came to an agreement with the Earnhardt family on March 16 that an expert would review the photographs and issue an opinion on cause of death and then the autopsy photos would be sealed. (See NM&L, Spring 2001)

The Independent Florida Alligator and other media organizations intervened in the case to challenge this sealing as a violation of their public access rights. On March 30, as the interveners’ motions were pending, the Florida legislature passed the new law restricting access to autopsy photographs. In light of the new law, the Sentinel and the interveners turned their arguments to challenging its validity. In the event that the judge found the law valid, the media organizations also argued that the records should still be released because of the important public interest in viewing the photographs to prevent similar deaths in the future.

After Teresa Earnhardt’s testimony, Independent Florida Alligator Editor Jason Brown told NBC News that he sympathized with Mrs. Earnhardt.

“We don’t want to cause her anymore suffering than she’s already gone through with the loss of her husband,” he said on June 12. “We simply want to be able to gain as much information as we can to get the information to the public.”

The fight for access to these records is not over. The Orlando Sentinel and its sister paper the South Florida Sun-Sentinel continue to challenge the validity of the law in a separate case in Broward County involving requests denied under the new Florida law for approximately 70 autopsy records. In mid-July attorneys were still considering appeal options in the Earnhardt case in Volusia County.