Photographing the Dead

A bit belated yet nonetheless timely, the U.S. Supreme Court has ruled in favor of photojournalist Peter Turnley and Harper’s Magazine by upholding a March 2007 decision of the 10th U.S. Circuit Court of Appeals, which found that Turnley had a First Amendment right to take a photograph of U.S. Army Spc. Kyle Brinlee’s open casket at a large public funeral in Oklahoma and Harper’s Magazine had the same right to publish it.

Brinlee was killed May 11, 2004, in Al Asad, Iraq, when his convoy struck an IED. More than 1,200 people attended his public funeral in a high school auditorium in Pryor, OK. Turnley photographed the funeral and pictures from it were part of an essay published in Harper’s Magazine in August 2004 in an essay titled “The Bereaved: Mourning the Dead, in America and Iraq.” Turnley’s photographic essay compared how the war dead are buried and mourned in American culture alongside similar images of how the war dead are buried and mourned in Iraqi culture.

Brinlee’s father, Robert Showler, and his maternal grandmother, Johnny Davidson, filed suit in April 2005. A federal judge in Oklahoma ruled in favor of Harper’s and Turnley citing First Amendment and state law protections. The plaintiffs appealed and an appeals court upheld the judgement, saying that Brinlee’s funeral was newsworthy and a matter of public interest.