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    A Times Editorial

    Keep autopsy photos public

    © St. Petersburg Times, published March 8, 2001


    The Florida Legislature never looks so bad, or does so badly, as when it surfs the crest of some current hysteria. One such time came in 1971, when a court-martial convicted Lt. William Calley of murder in the My Lai massacre. Inexplicably, Calley was a hero to enough unthinking people that legislators introduced a resolution in support of him. Wiser members managed to delay and defeat it.

    A similar timeout is in order now, lest lawmakers do deep and lasting harm to the open-government principles that most of them claim to cherish. Responding to protests from Dale Earnhardt's fans and from his widow, top Republican legislators and Gov. Jeb Bush are trying to make it a felony to release autopsy photos except to state and federal agencies.

    The photos are now public records, as the lawyer for Mrs. Earnhardt tried to tell her before she replaced him with another who is pressing her lawsuit against their release to the Orlando Sentinel.

    The family's concerns deserve sympathy, but there are few if any circumstances under which a newspaper would actually publish such photos. Indeed, the Sentinel has pledged not to print or even copy them. There are, however, many conceivable circumstances to justify preserving them as public records. An autopsy photo posted on the Supreme Court's Web site contributed to the Legislature's decision to replace the electric chair with lethal injection. Under what lawmakers now propose, would the justices have been felons?

    In Earnhardt's case, the newspaper is investigating whether the popular race car driver died because he was not wearing a special head-restraint device that perhaps NASCAR should require of all its competitors, or because of a broken seat belt. These are unquestionably public issues.

    The Sentinel proposed to have its independent medical expert review the photographs in the presence of a representative of Earnhardt's estate, but Mrs. Earnhardt's new lawyer, who happens to be prominent in the Republican Party, refused the deal.

    The Republicans who want to seal autopsy photos contend that autopsy reports, which would remain public, are sufficient to meet any legitimate public need. But this reasoning is naked political censorship. They argue also that a judge could waive the ban, but First Amendment experts say that's not true -- and if it were, it would insert prior restraint into freedoms specifically guaranteed by Florida's Constitution. Legislative meddling would set a reckless precedent whether the case concerned a celebrity like Earnhardt or a prisoner who died under circumstances that authorities would rather not see mentioned in an autopsy report.

    Tom Feeney, Jim King and Jeb Bush need to cool down, take time and let the Sentinel's case proceed under present law. To do what they propose as swiftly as they propose is, in a word, irresponsible.

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