Commentary — October 1, 2007, 5:37 pm

Supreme Court Upholds Appeals Court Decision in Favor of Harper’s Magazine

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New York, NY, October 1, 2007 — The United States Supreme Court today upheld the March 23, 2007 decision of the 10th U.S. Circuit Court of Appeals in favor of Harper’s Magazine and photojournalist Peter Turnley in the case of Robert Showler and Johnny Davidson v. Harper’s Magazine Foundation and Peter Turnley.

This case concerns the publication of a photograph of the open casket of deceased U.S. soldier Kyle Brinlee in a photo essay by Peter Turnley that appeared in the August 2004 issue of Harper’s Magazine entitled: “The Bereaved: Mourning the Dead, in America and Iraq.” (Download a PDF of the article.)

Robert Showler, Sgt. Brinlee’s biological father, and Johnny Davidson, his maternal grandfather, filed suit in April 2005. They lost their case later that year when a federal judge in Muskogee, Oklahoma, ruled in favor of Harper’s Magazine and Peter Turnley, citing First Amendment and state law protections.

Plaintiffs Showler and Davidson appealed the judgment in January 2006. On March 23, 2007, the appeals court affirmed the judgment of the district court, finding that Sgt. Brinlee’s funeral was newsworthy and a matter of public interest. The court of appeals also found that Turnley’s photograph published in Harper’s Magazine accurately reflected the image of Sgt. Brinlee’s funeral and open casket, as seen by over 1,200 people in attendance.

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“The Supreme Court has vindicated Harper’s Magazine’s position that Peter Turnley took photographs of Kyle Brinlee’s funeral with the full permission of the soldier’s family at a public event,” said Harper’s Magazine president and publisher John R. MacArthur. “The photograph was part of a larger essay, and from the beginning we emphasized that it should be viewed in the context of the larger essay depicting Iraqi and American war dead. Turnley was acting under the established principles of the first amendment guarantee of freedom of the press, and deserves praise for his respectful and newsworthy photograph of Sgt. Brinlee’s open coffin. “

“My photograph,” said photographer and long-time Harper’s Magazine contributor Peter Turnley, “was an accurate depiction of what any member of the public and press attending this funeral could see. I was given permission to attend the funeral and no restrictions were placed on what I could photograph. I believe the photograph and the photo essay were newsworthy, respectful, dignified, and of great interest and importance to the citizens of our nation and the world.”

“I am grateful to Harper’s Magazine,” said Turnley, “for publishing these photographs and for their tremendous support during this case. It turned out on the right side for journalism and freedom of the press and the First Amendment.”

The Court of Appeals found that such “fair and accurate media coverage of official public occasions is in the highest and best interest of the public, [and] . . . cannot be treated as actionable….”

“This victory is important, not just for Harper’s Magazine and Peter Turnley, but for the nation’s press and its citizens,” said the magazine’s attorney S. Douglas Dodd of Doerner, Saunders, Daniel & Anderson, LLP. “It validates the right of the American press to cover newsworthy stories of importance to the American public without the chilling effect of successful lawsuits brought by those who disagree with the content of the stories.”

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