Hustler law will damage access
Restricting or enlarging current law is not the way to remedy the release of disturbing crime scene photos, yet the state Legislature seems poised to do just that. Last month, a true-crime reporter working for Hustler magazine requested photos depicting Meredith Emerson’s nude and decapitated body under Georgia’s public disclosure records laws. In 2008, Emerson was brutally killed while hiking with her dog in North Georgia. The atrocities were horrid and disturbing.
Hustler is now revisiting Emerson’s death for a possible feature in its pages. More widely known for its photos of nude (but living) women, Hustler is no ordinary media outlet. Understandably, last month’s request dismayed the slain woman’s family. But it’s disappointing that it created such pandemonium at the state Capitol that legislators scrambled to pass a law preventing the release of such photos.
The legislation strikes directly at our public records laws by amending the existing exceptions to public disclosure to include crime scene photos. Another proposal suggested enlarging the obscenity laws. Neither of these suggestions is a good fix.
Georgia’s public records laws already contain more than 15 exceptions to public disclosure, including medical records, law enforcement records that might endanger a person or investigation and autopsy photographs and recordings.
In 2001, after the controversial death of race car driver Dale Earnhardt, the Florida Legislature amended Florida’s open public records laws to prevent the release of autopsy photographs, videos and audio recordings. Notably, it did not include crime scene photos.
The Meredith Emerson Privacy Act needlessly expands Georgia’s prohibition of releasing autopsy photographs and recordings. Tacking on crime scene photos misses the intended effect, which is to limit the intrusion into the family’s privacy. The mere request for access to the photographs is not the driving issue — the possibility of publication (and the source of that publication) is. The Legislature should consider the difference before it acts.
Enlarging obscenity laws to include crime scene photographs is also short-sighted. Crime scene photos can be instructive for law enforcement and legal education. They provide information about crimes and criminal behavior. Obscenity laws are by nature vague, ill-equipped to judge crime scene photos. I have looked at my share of crime scene photos. Many of them are ghastly, certainly some of them nightmarish, but obscene is not the adjective I would use. They are sad and upsetting. Obscenity laws keep foul words off network television. Those laws, however, are not meant to manage the indignity of death.
It’s ironic that our Legislature is on the verge of passing this legislation during Sunshine Week, which celebrates open government. Creating a broad law based on narrow facts frustrates the public’s right of access. In cases where innocent people were convicted of crimes they did not commit, it was often investigative reporting rather than legal channels that unlocked the mystery.
When a brutal crime occurs, it does not discriminate. It always destroys. But uncomfortable as the notion of the study of death is, it informs us, educates us and maybe even makes us safer. Yes, the state Legislature has legitimate reasons for concern. Yes, Emerson’s family has the right to be protective. But haphazard laws won’t serve the public. If compelled to act, the Legislature should consider passing a stand-alone law that prevents the malicious, gratuitous or unethical use of such photos. Darkening Georgia’s sunshine laws is a sacrifice, not the solution.
Jessica D. Gabel is a law professor at Georgia State University.
