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Supreme Court places a premium on privacy
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

Privacy is growing more potent.

As courts grapple with complex issues involving the release of government information to the public and the press, they appear increasingly protective of Americans’ right to be left alone.

This trend was underscored by the unanimous decision by the U.S. Supreme Court on March 30 in National Archives and Records Administration v. Favish. The Court found that the photographs of former Clinton White House lawyer Vincent Foster taken at the site of his suicide would not have to be released under the Freedom of Information Act.

The Court concluded that the privacy rights of Foster’s immediate family trumped the arguments of a California attorney who said he needed access to the photos as part of his investigation into whether Foster was, in fact, murdered as part of a government conspiracy.

The First Amendment creates a presumption of access to some government information, but Congress has great latitude in deciding what information can be released and under what circumstances. In this case, the Supreme Court had to interpret a portion of the statute that bars the release of law enforcement records that may invade personal privacy.

In seeking the photographs, Allan Favish had argued that the reference to personal privacy in the statute only means the privacy of the individual and can’t be applied to spare the feelings of third parties, including family members.

The Court disagreed.

“Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rights and respect they seek to accord to the deceased person who was once their own,” Justice Anthony Kennedy wrote in the decision.

The Supreme Court did acknowledge that this personal privacy exemption may be overcome if someone seeking the records could demonstrate that government officials acted negligently or improperly, but noted that there would have to be more than “a bare suspicion.”

Kennedy observed that five different investigations had concluded that Foster committed suicide, and that Favish hadn’t established government misdeeds.

On the face of it, this decision merely means that some fairly explicit photographs of Foster’s body won’t see the light of day. Most observers won’t see a problem with that.

But this decision could have a longer shadow:

  • By expanding the definition of personal privacy, the Supreme Court has given government officials much broader grounds on which to deny requests for law enforcement records. The decision tips the balance in favor of privacy and against the free flow of information.
  • The ruling also tips the scales against citizens seeking to challenge their government. The Foster case has been much discussed on talk radio over the past decade. Despite the five investigations, some people believe that Foster’s death was not a suicide. Of course, if you believe a government conspiracy was in place, you’re not exactly comforted by the fact that five government agencies declared there was no such conspiracy. With this ruling, the Supreme Court is in essence saying, “The documents you’re seeking to prove your case may not be released to you unless you do a better job of proving your case.” This stance has implications for matters well beyond the Foster probe.

The most telling element in the Supreme Court’s decision, though, was its assertion that the personal privacy rights of family members must be protected so they may seek “refuge from a sensation-seeking culture.”

This is a reminder that as public, press and media push the envelope with increasingly sensational content, courts are going to be inclined to push back.

To be fair, it’s not the mainstream media that judges truly worry about. It’s the uninhibited and unrestrained nature of the Internet that probably gives them pause.

Family members are haunted by the notion that they may one day see their loved ones’ autopsy photos posted on a Web site. It was precisely that fear that fueled Florida legislators’ passage of a law sealing autopsy photos of race car driver Dale Earnhardt.

Public revulsion at sensationalistic, intrusive and exploitative Web sites and publications is understandable, but the growing emphasis on privacy doesn’t bode well for responsible and legitimate gatherers of news and information.

The legislation spurred by the Earnhardt case and this decision sealing the Foster photos are among the first wave of developments signaling broader protection of privacy. They certainly won’t be the last.


High court won't order release of Foster photos

Justices say survivors' privacy outweighs public's right to full information on Clinton aide's suicide in Favish case. 03.30.04

Justices broaden FOIA privacy exemption
By Tony Mauro High court's ruling in Favish places new burdens on records requesters to overcome privacy interests. 03.31.04

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