Judge dismisses Navy SEAL lawsuit against The Associated Press


By GARY GENTILE
Associated Press Writer

LOS ANGELES (AP) -- A federal judge has dismissed a lawsuit filed against The Associated Press and one of its reporters that alleged the news organization violated privacy and copyright laws by publishing photos of Navy SEALs posing with Iraqi prisoners.

The lawsuit was filed after the AP distributed photographs that reporter Seth Hettena found posted on a commercial photo-sharing Web site, Smugmug.com, by the wife of one of the SEALs.

All four counts of the lawsuit were dismissed Tuesday in San Diego by U.S. District Court Judge Jeffrey Miller, who concluded that the claims lacked merit and that the AP did not violate any law by distributing the photos.

While Miller dismissed a claim of copyright infringement, he did leave open the possibility that the plaintiffs could clarify and refile those allegations. A lawyer for the plaintiffs said later that he would refile the copyright claims.

The photos, distributed worldwide with a Dec. 3 story by Hettena, appear to show the servicemen in Iraq sitting on hooded and handcuffed detainees and also what appear to be bloodied prisoners -- one with a gun to his head.

The story said the Navy had launched a formal investigation into the photographs after being shown them by an AP reporter, adding the photos did not necessarily depict any illegal activities.

The AP later reported that the Navy's preliminary findings showed most of the 15 photos transmitted by the agency were taken for legitimate intelligence-gathering purposes and showed commandos using approved procedures.

Miller dismissed three counts claiming that the AP invaded the privacy of the SEALs, noting that the SEALs were "active duty military members conducting wartime operations in full uniform who chose to allow their activities to be photographed and placed on the Internet."

He also agreed with the AP's legal response citing a California law intended to allow quick dismissal of meritless cases aimed at stifling free speech, meaning the news agency is entitled to recover its legal expense from the plaintiffs.

The judge's ruling said it would not be reasonable "for anyone to expect the images to remain private."

The plaintiffs had claimed that the AP should obscure the faces of the SEALs and that the lives of the servicemen were placed in danger as a result of the photos being distributed worldwide. But Miller said the expressions on the faces of some of the SEALs, some of whom were smiling as they posed with prisoners, "form an integral part of the story about potential mistreatment of captives."

"The Associated Press merely distributed a truthful story, with photos that depict a topic of great public interest," Miller wrote.

Dave Tomlin, the news cooperative's assistant general counsel, hailed the decision.

"The judge said repeatedly in his ruling that the AP and our reporter were only doing their jobs," Tomlin said. "We're very happy the court has affirmed what we said from the start about this groundless suit."

James Huston, the plaintiffs' lawyer, said he intends to appeal the decision, as well as refile the copyright claims.

"There appear to be facts in the opinion and on which the opinion is based that are not in the record," Huston said. He said no evidence had been presented about who took the photos. He also said the servicemen did not give permission to the SEAL wife to post the photos on the Internet.

The lawsuit had said the wife believed the nearly 1,800 photos she posted on the Internet site were protected from access by unauthorized users and required a password to view. The initial AP story, however, noted that the photos were found using the search engine Google, and were not password-protected until after the reporter purchased copies online and began inquiries.