Accident photos are big responsibility; so is freedom

One of the hardest things to do in the news business is explain to a family member why a photograph of a gory accident scene ran in the newspaper, especially if someone died in the crash.

At the Inter Lake, we typically would have a discussion between the photographer, a reporter and several editors about what is appropriate on a case-by-case basis. It’s quite devastating for photographers to be asked to document the carnage of a crash, but they do it because it’s their job to provide a record of our community, both good and bad, pleasant and unpleasant.

If we learn that a crash involves a fatality, we oftentimes don’t run the photo, or choose one that emphasizes the emergency workers rather than the car crash itself.

We understand why members of the public, and certainly family members, are upset by the publication of even those photos, but nonetheless, we have an obligation as a news organization to present the truth about all aspects of life to our readers. Our highways do present a danger, and it is certainly important to remind people of the dire consequences that bad road conditions or bad decisions can have on our friends and neighbors.

And yes, sometimes, despite our best efforts, an individual editor or photographer may make a bad decision too, and a photo will be published that should not have been. But that is a matter of taste and respect, not a matter of law.

Now Rep. Amanda Curtis, D-Butte, wants to change that. Curtis has introduced House Bill 553, which would prohibit news organizations from running photographs of fatal accident scenes on social media “that make it possible to identify the victim of a fatal accident before the next of kin of the deceased has been notified of the death.”

While well-intentioned, the bill is logically flawed, unenforceable, inconsistent and unconstitutional.

Fortunately, in our country, the freedom of the press is virtually absolute, and the courts have consistently held that news organizations cannot be prohibited from publishing something using “prior restraint.” In the matter of accident photos, as in virtually every decision a newspaper makes, it is the responsibility of the editor to use responsible judgment. The government cannot make those decisions instead, lest we provide a terrible new power to the state to limit what is and is not appropriate for the public to hear, read or see.

But beyond that fundamental issue, the bill is just not well thought out. Who will decide what makes it possible to identify the victim? That is a subjective judgment which cannot be measured by any specific standard, and news organizations already strive to protect their audiences by guarding against such a likelihood.

Moreover, who is going to be responsible for alerting news organizations that the next of kin has been notified, and the photo is now permissible to publish on social media? No such mechanism is possible, which on the face of it makes the law unenforceable.

A further logical absurdity with the law is that it actually makes it legal for newspapers or TV stations to publish the photograph in print or on the air, even though they are forbidden to use the photo on Facebook or Twitter. Moreover, a newspaper’s own website is an extension of its print edition, and not considered social media. Therefore the photograph can be online in one format but not another.

The last complaint with the proposed law is that it singles out news organizations (the very entities which are most protected by the First Amendment) for restrictions, but leaves untouched the general public, police officers, firefighters and EMTs. Any of them would be free to publish accident photos on social media while newspapers waited for permission from some unnamed guardian of the public.

That’s at least six major flaws in a bill that is literally just seven lines long. Curtis has made it clear from her past positions that she is an advocate of more government and less individual liberty, but House Bill 553 is a stretch even for her. The House Judiciary Committee held a hearing on the bill Friday morning. We encourage the panel to unanimously reject this unconstitutional proposal Monday morning, or even more appropriately, we beseech Rep. Curtis to withdraw the bill as entirely unacceptable in a free society.