Michigan law preventing press from photographing dead bodies unfair & seemingly unconstitutional

first amendment

OPINION—in defense of Damian Leist

Benjamin Gohs

News Editor

Now that my media homies have all chimed—rightfully so—on the importance of honesty, integrity and proper procedure as it pertains to covering a news event like the not-too-distant deadly plane crash outside Boyne City, I am compelled to share a few concerns of my own.

[For those of you not in the know, a Charlevoix County News employee has been charged with a felony for appearing on a video of a deadly plane crash site. http://www.petoskeynews.com/featured-pnr/charlevoix-county-news-reporter-charged-with-photographing-body-in-grave/article_97809ae2-8f41-11e3-beb5-001a4bcf6878.html ]

The most pressing issue on my mind is concern that my news organization may next be slapped with charges for unwittingly photographing leftover viscera from the Addis Road event.

Granted, the Boyne City Gazette was given permission and no less than a police escort to take said photos. However, if, according to the obscure—and what I believe should eventually be undone as unconstitutional—law governing this matter is used to stifle a citizen’s ability to record certain images in public … it won’t be long before the list of prohibited subjects is increased to appease myriad special interests.

According to Michigan law 750.160a, the photograph of a decedent located in a human grave is prohibited, with exceptions.

“A person shall not knowingly photograph or publicly display a photograph of all or a portion of a decedent located in a human grave,” it states in the law.

The law does not apply to people who have written permission from the decedent’s family or to those who are photographing for purposes of law enforcement, medicine, archaeology or science.

Why “journalism” was left off the list needs no speculation: it was created for the sole purpose of inhibiting the freedom of the press under the guise of some notion of respect for inert matter which once-upon-a-time contained human consciousness.

Nonetheless, the makeshift grave sites considered off-limits include any place intended for permanent interment of all, or a portion, of the dead; and any part of a person who died in an accident or disaster—from where the remains cannot be removed.

That last part does not seem to apply here in the least since the remains were eventually removed. And, if the law is interpreted to indicate that any place blood is spilled becomes a sacred grave, then we’re going to have to begin marking off an awful lot of land as “No-photo Zones.”

The reason(s) why such an obscure law—which, despite its questionable validity—is being applied only to one of the media members who photographed the plane wreckage is another concern altogether.

Don’t get me wrong, I know the Michigan legislature had the legal authority to pass a law aimed at quenching the misguided angst of a fatal shipwreck’s stakeholders. But, authority is not self-justifying. As Noam Chomsky has said time and again, the burden of proof of whether a law is necessary and ethical rests on those seeking to create the law.

I know, I know: the law is already passed and now the cops and courts must perform their sacred duties to follow said law.

Still, I have so many questions about this particular case.

• How pressing could a law be if the Charlevoix County Prosecutor did not even know about it beforehand? I mean, if one has to dig and dig to find another guilty of a crime, does the action in question truly rise to the level of concern for public safety?

• Or, is this merely a convenient technicality intended to remind us that the heavy fist of authority need no justification?

• Is this case only being prosecuted because a relative of one of the men killed in the crash may have complained about the video in question?

• If so, is that how cases for prosecution are usually decided?

• Why has only the man on tape been charged … and not the photographer? It seems that, if one were to follow the Edmund Fitzgerald law, it would be the person holding the camera who should be in trouble.

• Did the media member in question really lie to the police? If so, why wasn’t he charged for doing so? And, if this is really what these charges are all about, is that really the ethical course to take?

• And, even assuming that a full dead body could be seen on the video tape in question—which it cannot—what right to privacy should be afforded to a corpse in public that is not afforded, per the Supreme Court of the United States of America, to the living? After all, they have ruled that one has no expectation of privacy while in public.

In the end, it seems as though the best course for dealing with a media member’s questionable handling of reportage from a crash site should have started and ended with a conversation between the relevant office of law enforcement and the news media’s publisher, editor and staff.

Ultimately, anyone who knows me knows I am not generally a fan of any policing agency—large or small—but I have had both personal and professional dealings with the Charlevoix County Sheriff’s Office for many years … and they have always been square with me.

And, though I do not know him, I would like to think our county prosecutor has only public safety in mind when he considers whether to pursue criminal charges against we residents.

So, here is my final question: is bludgeoning an overzealous and possibly imprudent small town newspaper employee with an obscure law never before applied to 99.9 percent of the rest of us really going to serve the public interest?

After all, even a cursory look at recent headlines at the state and local levels show there are much bigger scoundrels who have had their charges against them dropped under the umbrella of prosecutorial discretion.

I’d say the First Amendment is as good a reason as any.