Thursday, March 03, 2005

When being right is not enough

One of my passions is the right to know. As deeply as I believe that free speech is the most fundamental human right, I believe that access to information is the keystone for citizen participation in public affairs. I do not, however, believe that one always protects a right by demanding it.

There is a court of public opinion that may trump the holdings of the highest court. Paul Starr made that point in his recent Op-ed piece in the New York Times, Winning Cases, Losing Voters, where he discusses the present dilemma of the national Democratic Party.

Starr's argument resonated for me because of discussions I took part in a few years ago, on quite a different topic. At the time, the authorities in Florida were rejecting newspapers' requests to see the autopsy photos after Dale Earnhart's fatal wreck at the Daytona 500 stock car race. A newspaper sued to demand the photos, and media organizations threw their lawyers and editorial pages into the fight in support of the demand. The problem was, Floridians were largely sympathetic to the reason officials gave for not releasing the photos: Publication of the presumably grizzly images would cause needless pain for the grieving family of the driver, a popular sports hero in the racing world and especially in the Southeast.

So even though a compromise was negotiated between the newspaper and the Earnhart family, there were several unfortunate outcomes. Each of them eroded the right to know. Most obviously, the case reinforced the stereotype of the press as trampling on the feelings of innocent sufferers. Many Americans already recoil at what they find in print or on TV, and applaud whatever power promises to clean up the information trash heap. At a practical level, the Earnhart photo case became the springboard for a new Florida law forbidding medical examiners to release autopsy photos. That's one more among dozens of exceptions to Florida's long tradition of open government, and a precedent for further exceptions that I fully expect will be attempted in a Legislature keenly alert to public sentiment.

The activist absolutists of the press may have found some satisfaction in, as one put it to me, "fighting the good fight," but the collateral damage was tragic to the cause of public information. A wiser course would have been to litigate a different case, one in which public opinion would be an ally, not an adversary. Generals, street brawlers and intelligent bureaucrats all learn to pick their fights. Is it too much to ask that media organizations do the same?

No comments: