This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
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Images of the Casualties of War:
Is There a Media Right of Access?
by
Nicole Elise Smith,
Park Fellow Doctoral Student
School of Journalism and Mass Communication
University of North Carolina, Chapel Hill
Campus Box #3365
Chapel Hill, North Carolina
27599-3365
[log in to unmask]
A research paper submitted to
Visual Communication Division of AEJMC
March 25, 2005
Images of the Casualties of War: Is There a Media Right of Access?
Abstract
At the onset of the 1991 Gulf War, the U.S. Pentagon issued a policy
prohibiting media coverage, including photography, of the caskets of
slain American soldiers arriving at Dover Air Force Base. This
research asks, based on the unique attributes of images to convey
information, is the ban an unconstitutional prior restraint?
Additionally, as some families want photographic coverage of the
return of their loved ones, does the restriction violate these
families First Amendment rights?
Images of the Casualties of War: Is There a Media Right of Access?
At the onset of the Gulf War in 1991, the United States Pentagon
issued a policy prohibiting media coverage, including photography, of
the caskets of slain American soldiers arriving at Dover Air Force
Base in Delaware.[1] The policy was later challenged by JB Pictures,
Inc. along with several other media entities and upheld by the U.S.
Court of Appeals for the District of Columbia in 1996.[2] The stated
intention of the Pentagon policy is to protect the privacy of fallen
soldiers and their families; however, the implications to the
fundamental right of freedom of the press cannot be ignored.[3]
Although this policy has been in place for more than 13 years, it has
not been strictly adhered to.[4]
In March of 2003, when it was becoming clear that war in Iraq was
inevitable, the Pentagon issued a directive reaffirming the policy.
Many Americans, however, were not aware that such a policy existed
until a controversy surfaced in April 2004 when The Seattle Times
printed a cover photograph of the flag-draped coffins of 21 slain
American soldiers onboard a cargo plane en route to the United
States. [5] The photographer, Tami Silicio, a cargo worker for the
Maytag Aircraft Corporation, was promptly fired for releasing the
photograph. Silicio stated that she allowed the Times to publish the
photograph because she believes family members "want to see how our
loved ones, how our heroes are being taken care of and how they got home."[6]
In the same week, Russ Kirk, a First Amendment activist, published
more than 350 similar photographs that he had obtained through a
Freedom of Information Act request on his Web site,
www.thememoryhole.org. Subsequently, the Defense Department
prohibited the release of additional photos. John Molino, a deputy
undersecretary of defense, defended the decision saying, "We don't
want the remains of our service members who have made the ultimate
sacrifice to be the subject of any kind of attention that is
unwarranted or undignified."[7] In June of 2004, the U.S. Senate
voted 54-39 against an amendment that would have required the
Department of Defense to remove the restriction banning media access
to Dover Air Force Base.[8] According to Sen. Frank R. Lautenberg,
the amendment's sponsor, "A majority of the Senate are now working on
behalf of the president to conceal from the American people the true
costs of this war."[9]
The matter, however, is far from resolved. On October 4, 2004, Ralph
Begleiter, a journalism professor at the University of Delaware and
former CNN correspondent, filed suit based on the Freedom of
Information Act in the U.S. District Court in Washington, requesting
the Pentagon release photographs and videotapes of the coffins of
slain American soldiers returning to Dover Air Force Base.[10]
Meredith Fuchs, general counsel of the National Security Archives and
one of Begleiter's attorneys said, "These are the kinds of documents
that directly serve the core purpose of FOIA… Everyone says a picture
is worth a thousand words. Well, the pictures have an impact and help
people understand what war is really about in a way that nothing else
does."[11] Although the Pentagon has acknowledged the lawsuit, as of
this writing, it has not responded further.[12]
Critics see restricting media coverage as a political move by the
Defense Department to withhold information, in this case images of
war dead, from the American public in an effort to maintain public
support for President Bush and the war in Iraq.[13] The government
maintains that the issue is about privacy and protecting the rights
of the victims' families. And although the policy is meant to protect
the families of American soldiers, not all families support the
policy. Jane Bright, whose 24-year-old son, Evan Ashcraft, was killed
in Iraqi War combat said, "We need to stop hiding the deaths of our
young; we need to be open about their deaths."[14] The sentiment
expressed by this grieving mother and the intentions of Silicio and
Kick seem to reflect the understanding that "pictures of war matter,
to societies and to individuals."[15]
The purpose of this research is to examine the constitutionality of
the Pentagon policy restricting photographic coverage of the coffins
of slain American soldiers at Dover Air Force Base. This is a crucial
issue to examine for several fundamental reasons. First, freedom of
the press is one of the key constitutional guarantees for maintaining
a democratic society. Any time the press's First Amendment rights are
limited, research needs to ask why. Second, as our nation is in a
time a war—a war that was contested by countless Americans—research
must examine why the government is refusing to allow media access to
aspects of this war. Third, it is known that during World War I, our
government used images of war as tools of propaganda. And as the
Vietnam War showed, images of war have a powerful decision-making
impact on the American people. Therefore, this research will examine
the government's refusal to allow images of flag-draped coffins as a
means of protecting the privacy of victims' families weighed against
freedom of the press.
Literature Review
The JB Pictures case developed as a reaction to the Pentagon policy
of restricted coverage at Dover Air Force Base during the first Gulf
War in 1991. Scholars who analyzed JB Pictures, as well as other
forms of press restriction and editorial censorship during the Gulf
War, advised that issues of press access and censorship during a time
of military conflict be resolved before we encounter another military
conflict.[16] Yet today, in 2004, as we are engaged in another
military and political conflict in the Gulf, the Pentagon restriction
is still in place and there is still controversy surrounding its
application. The literature review will discuss images of war, press
censorship during a time of war, and the analysis of JB Pictures.
Images of War
There are many photographs that have become iconic symbols within
our collective conscious—and many of these are images of war.[17] The
image of a naked girl running through the streets of Vietnam after
being burned by Napalm is ingrained on our minds just as is the image
of American soldiers raising the flag at Iwo Jima. As Perlmutter
notes, "Images of war reflect and refract the way we think about war;
their study is a means to understand the place of the institution of
war in human history and the human mind."[18]
As with the above examples, there are both negative and positive
images of war. Newhagen and Reeves found that in television news
coverage of war, the more memorable images are the negative ones,
such as images of human suffering.[19] Given this understanding, it
is central that the news media be able to present all images of
war—not just the ones deemed appropriate by the government.
Scholars have examined images of war from both quantitative and
qualitative perspectives. In a content analysis of the 1991 Persian
Gulf War and the current war in Iraq, researchers studied images from
both conflicts in detail, including the type of scene, the injury
level of soldiers presented, and the impression of the enemy.[20]
Researchers found that the 2003 coverage of the war in Iraq included
substantially more photos and a greater amount of photos documenting
the actual conflict as compared to the 1991 coverage.[21] The
conclusion is that the embedded system of journalism present in 2003
provided greater access for photojournalists than did the press pool
system present in 1991.[22] In regard to the implications, the
researchers conclude, "The American public and the rest of the world
have a much better understanding of the benefits, rigors, and horrors
of war when journalists are allowed to cover conflicts as closely and
completely as possible."[23]
From a qualitative perspective, researchers have provided critical
and cultural studies of images of war. In an argumentative essay,
Dauber provides rhetorical analysis of a series of photographs,
including combat and casualties during the Persian Gulf War, U.S.
troop participation in Mogadishu during a United Nations relief
mission, and images of the NATO air war in Serbia.[24] The researcher
concludes that visual images have had a "profound effect on senior
leadership's perceptions of what level of casualties the American
public will and will not support during humanitarian
interventions."[25] In a study of one of the most memorable and
horrifying images to emerge during the Vietnam War—that of a Buddhist
monk setting himself on fire in protest of the war—Skow and
Dionisopoulos studied the image as a frame through which many
Americans began to perceive the war.[26] They conclude that although
this image engaged the American audience, the frame provided by the
print media (either one of religious oppression or one of freedom
against communism) determined the reaction by the American public.[27]
In another analysis of a Vietnam War image, that of a naked girl
running through the streets of Vietnam after being burned by Napalm,
scholars have studied the image as a symbol of the "collective
haunting" of the Vietnam War.[28] Despite editorial debate about
printing an image of nudity, the image was printed around the world,
and its photographer, Nick Ut, received the Pulitzer Prize. According
to Goldberg, this photo "became one of the most memorable images of a
war that counted its history in images."[29] Additionally, it has
been widely shown to have influenced public attitudes toward the war
"by confronting U.S. citizens with the immortality of their
actions."[30] Goldberg concludes that the picture "became a vivid
symbol of the war and temporarily renewed the antiwar fervor."[31]
Press Censorship During a Time of War
Although the media have always reported on war, the degree of access
to war and levels of government restriction have not been the same in
all military conflicts. For example, the military began a system of
prepublication review (a form of prior restraint) in World War I, and
while reports of World War II were still subject to prepublication
review, reporters had greater battlefield access.[32] Technology has
also impacted war coverage. Vietnam is often referred to "the first
TV war," and by the Gulf War in 1991 satellite technology allowed for
unprecedented, 24-hour television coverage of war.[33] Although there
was massive press coverage of the Persian Gulf War, given the
advanced communication technologies, reporters were subject to
prepublication review, and a press pool system restricted access to
only designated reporters.[34] Some have argued that due to the
strict government control over the coverage, the press was being used
as tools of propaganda.[35] And the restrictions on the media during
the Persian Gulf War have been referred to as "the most strict in
American journalistic history."[36] In a study of these restrictions,
Burch refers to the Pentagon Papers case stating that the U.S.
Supreme Court ruled that the government cannot restrict publication
of material it merely finds to be embarrassing and that "negative
public reaction is not just cause for prior restraint."[37]
Additionally, in regard to press censorship, O'Neil states, "Since
media coverage of military engagements has been permitted throughout
most of American history, and at times facilitated, it could be
argued that limiting access of the media to a particular engagement
is the power to ensure readers and viewers known only about 'good
wars' and not about what the Pentagon may deem 'bad wars.'"[38]
JB Pictures Analysis
The opinion of the court in JB Pictures v. Department of Defense
hinged on two central issues: a qualified right of access and a
question of viewpoint discrimination within the notion of the press
as "speakers" rather than information gatherers.
A key issue addressed in JB Pictures was whether the First Amendment
granted the media access to Dover Air Force Base to photograph the
return of the caskets of slain American soldiers.[39] Previously, the
Supreme Court had ruled on the media's right to gather information in
prisons and in criminal proceedings.[40] In regard to media access to
prisons, the court relied on a balancing test to weigh the interest
of the public in obtaining information against the government
interest to deny access.[41] In both Pell v. Procunier and Saxbe v.
Washington Post, Co., the Supreme Court ruled that government
interest in maintaining prison security outweighed the right of the
press to gather information.[42] Four years later, the Supreme Court
addressed media access to prisons again and concluded by quoting Pell
that the media have no greater access to prisons or to inmates beyond
that afforded to the general public.[43] Concerning media access to
criminal proceedings, the Court used a two-pronged test based on a
tradition of openness and whether media access contributed to the
functioning of the process.[44] In Globe Newspaper Co. v. Superior
Court, the Court concluded that criminal trials were generally open
to the public and that access to criminal trials contributes to the
justice system.[45] However, a narrowly tailored restriction
supporting a compelling government interest can be held
constitutional as there is no absolute right of access to criminal
trials.[46] As the Supreme Court has only ruled on media access to
prisons and criminal proceedings and has not set a clear precedent as
to which tests should apply in other right of access cases, generally
lower courts have applied both tests.[47]
In analysis of JB Pictures, scholars have reached different
conclusions. Stear argues that based on the precedents set in the
prison access cases and Nation Magazine,[48] "the court's refusal to
find a right of access to Dover Air Force Base is not
surprising."[49] According to MacNair, however, in JB Pictures, the
Court of Appeals for the District of Columbia "inaccurately resolved
the balancing test in favor of the government."[50] MacNair states
that the interest of the media was more significant than in previous
right of access cases and that the government interests "lacked both
strength and legitimacy."[51] Specifically, if the media were allowed
to photograph the return of caskets at Dover Air Force Base, it would
result in an increased dissemination of information, and coverage
would result in "a realistic, emotional aspect of the events that a
newspapers article cannot match."[52] In regard to the government
interest, MacNair concludes that while the stated intention of
protecting the privacy and economic interests of the deceased's
families is significant, it is "trivial" when compared to the
interest of maintaining prison security as in the case of Pell and Saxbe.[53]
JB Pictures also addressed the appellants' claim that the Department
of Defense restriction resulted in viewpoint discrimination by
failing to recognize photographic coverage as speech. Additionally,
the claim of viewpoint discrimination arises in that the policy only
restricts coverage of deceased soldiers returning from war; it does
not restrict coverage of healthy soldiers departing for war. The
opinion of the court in JB Pictures states that the restriction was
viewpoint neutral in that the policy "applies in a uniform fashion to
all members of the press and public, regardless of their views on war
or the United States."[54] In his review, MacNair states that
restrictions on speech require an analysis of forum type, and that
while Dover Air Force Base in not a traditional public forum, it was
a designated public forum because "the government opened Dover for
the express purpose of allowing the public and media to view supplies
and personnel being shipped off to the Persian Gulf."[55] As such, in
the court analysis, the Dover Air Force Base restriction should have
been subject to strict scrutiny, and likely, it would not have been
found to serve a compelling government interest.[56]
In summary, while Stear argues that the court "took a moderate means
to reach a conservative end," she still concludes that "the American
public's open window into the activities of the United States
military has been partially closed."[57] MacNair takes an even bolder
position in concluding, "Suppressing the realities of war allows the
government to maintain unobstructed decision making power. Unless the
courts or legislature review, and when appropriate, nullify
Department of Defense restrictions on the media, the democratic
nature of the United States will suffer."[58]
The intention of this literature review was to show that images of
war are powerful both in their impression and in their impact. And in
the case of JB Pictures, as the courts have denied the right of
photographers to an essential reality of war—the coffins of slain
American soldiers—this research will seek to understand why. Central
to this understanding will be the unique nature of images as speech
and the role of the news media in the dissemination of information.
Research Questions and Methodology
The purpose of this research is to examine the constitutionality of
the Pentagon policy restricting photographic coverage of the coffins
of slain American soldiers at Dover Air Force Base. The research
questions under investigation are:
1. Based on the unique attributes of images to convey information
about war that words alone cannot, is the ban on photographic
coverage of the coffins of slain American soldiers at Dover Air Force
Base an unconstitutional prior restraint?
2. Additionally, based on the fact that some of the families of slain
American soldiers want photographic coverage of the return of their
loved ones, does the restriction violate these families' First
Amendment rights?
This paper will use the traditional legal research method to analyze
existing court opinions. The analysis will include cases decided by
the United States Supreme Court involving issues of media rights of
access. Specifically, the cases relating to media access to prisons
and courtrooms will be analyzed. Additionally, a case relating to
broadcast and photographic coverage of criminal proceedings will be
analyzed. The analysis of relevant cases will examine the language of
the court opinion as well as relevant dissents to determine how the
courts have ruled on restrictions of media access prior to the JB
Pictures v. Department of Defense case in 1996.
Media Rights of Access to Prisons
This section will address three key U.S. Supreme Court cases that
ruled on media access to prisons. These three cases are Pell v.
Procunier (1974),[59] Saxbe v. Washington Post Co. (1974),[60] and
Houchins v. KQED (1978).[61]
Based on the similarities of Pell[62] and Saxbe,[63] the Court ruled
on the cases in conjunction with one another. In both cases, the
media were questioning the constitutionality of regulations which
banned the news media from having face-to-face interviews with
designated inmates. Writing for the majority in Pell, Justice Stewart
stated: "The First and Fourteenth Amendments bar government from
interfering in any way with a free press. The Constitution does not,
however, require government to accord the press special access to
information not shared by members of the public generally."[64] The
Pell holding concluded, "Newsmen have no constitutional right of
access to prisons or their inmates beyond that afforded to the
general public."[65] Again writing for the majority in Saxbe, Stewart
concluded, that this case was "indistinguishable" from Pell, and thus
the Pell holding stands.[66]
In Pell, Justices Powell and Douglas both wrote dissents. Powell
concluded that the "absolute ban against prisoner-press interviews
impermissibly restrains the ability of the press to perform its
constitutionality established function of informing the people on the
conduct of their government."[67] Douglas dissented[68] on the ground
that the absolute ban was far broader than necessary.[69] Douglas and
Powell also both wrote dissents in Saxbe.[70] Douglas dissented on
the ground that the absolute ban was far broader than necessary and
that it infringed on the right of the public to information as
guaranteed by the First Amendment.[71] Powell also dissented on the
ground that the absolute ban violated the public's First Amendment
rights to information and added that the ban did not protect
legitimate government interests.[72] Specifically, Powell concluded:
An informed public depends on accurate and effective reporting by the
news media. No individual can obtain for himself the information
needed for the intelligent discharge of his political
responsibilities. For most citizens the prospect of personal
familiarity with newsworthy events is hopelessly unrealistic. In
seeking out the news the press therefore acts as an agent of the
public at large. It is the means by which the people receive that
free flow of information and ideas essential to intelligent
self-government. By enabling the public to assert meaningful control
over the political process, the press performs a crucial function in
effecting the societal purpose of the First Amendment.[73]
In 1978, the U.S. Supreme Court ruled o\in Houchins v. KQED, Inc., a
case heard on appeal from the U.S. Court of Appeals for the Ninth
Circuit. Houchins, the sheriff of Alameda County, had refused to
allow media access to a portion of the county jail that had been the
site of a prisoner suicide and which was also the site of alleged
adverse physical conditions, rapes, and beatings. The plaintiffs
argued that the denial of access compromised the news media's First
Amendment rights. Additionally, by not allowing photographic and
broadcast coverage of the scene, the news media did not have an
effective means by which to inform the public of the prisoners'
grievances or of the prisoner suicide. The district court enjoined
the sheriff from denying news media access or from prohibiting
photographic and broadcast coverage of the site. Although, the U.S.
Court of Appeals for the Ninth Circuit affirmed the decision, the
U.S. Supreme Court reversed and remanded the ruling. Four of the
seven members of the U.S. Supreme Court who ruled on the case agreed
that the media do not have a First Amendment right of access greater
than that of the general public; however, they were unable to agree
on an opinion. Additionally, a dissent was filed by three members of
the U.S. Supreme Court. The opinions of the concurring justice as
well as the dissent will be examined in greater detail.
In a 4-3 decision to reverse and remand the appellate court
decision, Chief Justice Burger wrote, "Beyond question, the role of
the media is important; acting as the 'eyes and ears' of the public,
they can be a powerful and constructive force, contributing to
remedial action in the conduct of public business."[74] He added,
"They have served that function since the beginning of the Republic,
but like all other components of our society media representatives
are subject to limits."[75] Based on the holdings of Pell and Saxbe,
Burger concluded, "Neither the First Amendment not the Fourteenth
Amendment mandates a right of access to government information or
sources of information with the government's control."[76]
In an opinion concurring on the judgment, Justice Stewart
substantially agreed with Chief Justice Burger's final conclusion and
the notion that "the Constitution does no more than assure the public
and the press with equal access once government has opened its
doors."[77] In a notable change from his previous opinions in both
Pell and Sabe, Stewart took a slightly differing opinion in the
application of the precedent to this particular case. He disagreed
with Burger in the application of rights of media access to the facts
of the current case. Stewart wrote, "I believe the concept of equal
access must be accorded more flexibility in order to accommodate the
practical distinctions between the press and the general public."[78]
To explain this role of the press as information disseminators and
the protection of that role by the Constitution, Stewart cited the
dissenting opinion in Branzburg v. Hayes stating, "Enlightened choice
by an informed citizenry is the basic ideal upon which an open
society is premised."[79] In KQED, Stewart wrote that a person
visiting a jail "can grasp its reality with his own eyes and ears.
But if a reporter is to convey the jail's sights and sounds to those
who cannot personally visit the place, he must use cameras and sound
equipment. "[80] He concluded, "Terms of access that are reasonably
imposed on individual members of the public may, if they impede
effective reporting without sufficient justification, be unreasonable
as applied to journalists who are there to convey to the general
public what he visitors see."[81]
What is most notable about this case as related to the research
questions under investigation is the dissent in KQED. In the dissent,
written by Justice Stevens and joined by Justices Brennan and Powell,
Stevens stated that he "respectfully disagrees" that the news media
have no greater access to prisons than that of the general
public.[82] In his view, KQED had legitimate news events worth
reporting and its coverage had not previously caused any
disturbances.[83] And although Pell held that the media do not have
access rights to prisons beyond that of the general public, "the
Court has never intimated that a nondiscriminatory policy of
excluding entirely both the public and the press from access to
information about prison conditions would avoid constitutional
scrutiny. Indeed, Pell itself strongly suggests the contrary."[84]
Like Stewart, Stevens also referred to "the preservation of a full
and free flow of information to the general public" as a "core
objective of the First Amendment."[85] He added, "It is for this
reason that the First Amendment protects not only the dissemination
but also the receipt of information and ideas."[86] Based on the
facts of the current case citing shocking and debasing conditions at
the Alameda county jail, the fact that it was a government funded
facility, and the fact that the information had no way of reaching
the public other than through the media, Justice Stewart's argument
for allowing press access and photographic and broadcast coverage is
reasonable.
Additionally, although limited tours were available,[87] the tours
did not cover all areas of the prison nor were photographs allowed to
be taken on these tours.[88] And although some photographs were
available for sale to tour visitors, they omitted key details.[89]
Final evidence revealed that these tours did not provide a "realistic
picture of the conditions of confinement within the jail."[90]
In conclusion, Stevens wrote:
It is not sufficient, therefore, that the channels of communication
be free of governmental restraints. Without some protection for the
acquisition of information about the operation of public institutions
such as prisons by the public at large, the process of
self-governance contemplated by the Framers would be stripped of its
substance. For that reason information gathering is entitled to some
measure of constitutional protection… to ensure that the citizens are
fully informed regarding matters of public interest and importance.[91]
Media Rights of Access to Courtrooms and Broadcast and Photographic
Coverage of Court Proceedings
In this section relevant U.S. Supreme Court cases examining media
access to court proceedings and broadcast and photographic coverage
of court proceedings will be addressed. The relevant cases are
Richmond Newspapers, Inc. v. Virginia, Globe Newspaper Co. v.
Superior Court and Chandler v. Florida.[92]
In Globe, the U.S. Supreme Court considered a Massachusetts statute
that required, under all circumstances, that the press be excluded
from criminal trials that involved minor victims of a sex
offense.[93] In deciding the case, the Court relied on the Richmond
Newspapers decision, which established that based on the First
Amendment, the press and general public have a constitutional right
of access to criminal trials.[94] In reaching this decision, the
Court relied on two aspects of the justice system. First,
historically, criminal trials have always been open to the press and
the general public.[95] And, second, press and public assess to
criminal trials plays a crucial role in the functioning of the
judicial system.[96] The Richmond Newspapers decision, however, did
not establish an absolute right of access to criminal trials.[97] The
case established that a state may deny access, but the restriction
must meet a compelling governmental interest and be narrowly tailored
to achieve that interest.[98] In Globe, the Court considered the
Massachusetts statute as based on its intention of protecting the
minor victims of sex crimes from further trauma and embarrassment and
the encouragement of these victims to come forward with truthful and
credible testimony. In writing for the majority, Justice Brennan
stated that the Court agreed that the first interest was compelling,
but that it did not "justify a mandatory closure rule" and that each
case should be examined for particular circumstances.[99] In
examining the second interest, the Court concluded that it did not
justify the statue as the state did not offer any empirical
support.[100] The Court concluded that the statute was a violation of
the First Amendment. Globe Newspaper held that a restriction closing
a criminal court case to the press and the public may be
constitutional if there is a narrowly tailored restriction supporting
a compelling government interest, as there is no absolute right of
access to criminal trials.[101]
In Chandler, the U.S. Supreme Court affirmed a Florida District Court
of Appeal decision regarding broadcast and photographic coverage of
criminal proceedings.[102] In the original case, criminal defendants
moved to declare unconstitutional a Florida law that allows for
broadcast and photographic coverage of public judicial
proceedings.[103] The defendants claimed that their right to a fair
trial would be compromised by the presence of cameras in the
courtroom.[104] The view of the Florida courts was such that "because
of the significant effect of the courts on the day-to-day lives of
the citizenry, it was essential that the people have confidence in
the process. It felt that broadcast coverage of trials would
contribute to a wider public acceptance and understanding of decisions."[105]
In writing the majority opinion, Chief Justice Burger referenced an
earlier decision in Estes v. Texas.[106] Based on the court
deliberation, Burger wrote that Estes "did not announce a
constitutional rule that all photographic or broadcast coverage of
criminal trials is inherently a denial of due process."[107] He did,
however, acknowledge that a criminal trial that receives "a great
deal of publicity" does present "some risks that the publicity may
compromise the right of the defendant to a fair trial."[108] The
Court concluded, however, that "an absolute constitutional ban on
broadcast coverage of trials cannot be justified simply because there
is a danger that, in some cases, prejudicial broadcast accounts of
pretrial and trial events may impair the ability of jurors to decide
the issue of guilt or innocence uninfluenced by extraneous matter."[109]
Discussion
The purpose of this research was to examine the constitutionally of
the Pentagon policy restricting photographic coverage of the coffins
of slain American soldiers at Dover Air Force Base. The central issue
surrounding the restriction is that of media access rights.
Previously, the U.S. Supreme Court has only ruled on media access
rights to prisons and courtrooms. In regard to media access to
prisons, the holdings in Pell and Saxbe found that the news media do
not have access to prisons any greater than that afforded to the
general public.[110] These decisions by the Court, however, were far
from unanimous. In the dissents by both Powell and Douglas in both
cases, these justices argued that an absolute ban on media access to
prisons was far broader than necessary and that there were serious
implications to the First Amendment guarantees of the public's right
to receive information.[111]
KQED was also decided by the Court by a narrow margin. Although
Justice Stewart substantially agreed with the majority opinion, he
made a strong argument for the necessity of cameras and sound
equipment in conveying accurate information by the news media to the
public.[112] In his dissent, which was also joined by Justices
Brennan and Powell, Justice Stevens provided a strong argument for
allowing press access to prisons that are federally funded to cover
newsworthy events of public interest and importance.[113] Stevens
further argued, "Without some protection for the acquisition of
information about the operation of public institutions… the process
of self-governance contemplated by the Framers would be stripped of
its substance."[114] He concluded that "information gathering is
entitled to some measure of constitutional protection."[115]
In the media access to courtrooms cases, Richmond Newspapers
established that based on the First Amendment, the press and general
public have a constitutional right of access to criminal trials.[116]
This access, however, is not absolute and a state may deny access,
but the restriction must meet a compelling governmental interest and
be narrowly tailored to achieve that interest.[117] Globe Newspaper
also supported this holding.[118]
In JB Pictures, the Court of Appeals for the District of Columbia
applied a balancing test that was established as based on previous
access cases. In his research, MacNair concluded that in JB Pictures,
the court "inaccurately resolved the balancing test in favor of the
government."[119] In comparing the government interests in Pell and
Saxbe against that of JB Pictures, it is also the opinion of this
researcher that while the stated intention of the Pentagon
restriction to protect the privacy and economic interests of the
deceased's families is certainly worthwhile, is less compelling than
that of maintaining prison security. It must also be noted that these
images in question are of flag-draped coffins. In no way do these
photos identify any soldier by name, nor based on the content of the
photos is there any chance for visual recognition of a particular soldier.
This brings up the unique nature of images as speech and their
ability to convey information in a way that words alone cannot do.
When the Court denied the news media access to prisoner interviews,
that decision did not exclude all access to information since the
news media still had other opportunities to obtain the same verbal
information, such as through telephone calls and letters. In KQED,
however, it was noted that verbal information alone could not convey
the same information that could be shown through photographs.[120]
The same could be said for information collected at Dover Air Force
Base. The news media can certainly verbally report on how many slain
American soldiers were brought back to the United States in a given
day, but the effect is not nearly as powerful as that of visually
seeing the coffins. Again, it must be reiterated that these images do
not identify soldiers. Instead they visually present the care that is
taken in returning these fallen soldiers to their loved ones.
Further, by seeing these images, the American public is able to
understand another aspect of war—that of the loss of human life and
the ultimate sacrifice that these soldiers have made. If the
government denies access to photographers at Dover Air Force Base, it
has the effect of totally shutting this information out of the
marketplace of ideas because there is no alternative means to
communicate these images. The argument presented here is that based
on the unique attributes of images to convey information about war to
the public that words also cannot convey, a government denial of
access to obtain images constitutes an unconstitutional prior restraint.
The rights of the victims' families must also be considered. In
considering Globe, the Court said that even though protecting the
victims from further trauma and embarrassment was a compelling
government interest, a complete closure of courtrooms without giving
consideration to the individual cases violated the First
Amendment.[121] Although the stated intention of the Pentagon policy
in question is to protect the privacy and economic interests of the
families, not all families agree with the complete media access ban.
There are certainly those families who want to see the photos of the
coffins of their slain family members to convey a message. And, again
in the photos in question, individual soldiers cannot even be
identified. Given these facts and based on a less compelling
government interest as compared to that in Globe,[122] the Pentagon
restriction is a violation of the First Amendment rights of those
families who want to see the photographs published.
In conclusion, it is certainly arguable that the return of slain
American soldiers is a newsworthy event of public interest and
importance worthy of being conveyed to the American people.
Additionally, the Pentagon ban is not narrowly tailored and has a
questionable compelling governmental interest. Given these facts and
in consideration of Justice Stevens' dissent in KQED, it can be seen
that he had a legitimate concern in wanting to establish
constitutional protection for the right to gather information. As
time passes, the government is continuing to place increased
restrictions on the access of our news media to collect information.
In turn, this then limits the First Amendment rights of the American
public to receive complete information.
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