Judge rules in favor of magazine in case of slain soldier's photo



TULSA, Okla. (AP) -- A judge has ruled against relatives of an Oklahoma soldier killed in Iraq who had sued Harper's magazine over its publication of a photograph of his body in an open casket.

Kyle Brinlee's father and grandfather had claimed the publication of the photo was "so extreme and outrageous as to go beyond all bounds of decency." In his ruling Dec. 22, U.S. District Judge Frank Seay noted that the photo had been taken at a funeral attended by about 1,200 people, including Oklahoma's governor.

"If the plaintiffs wanted to grieve in private they should not have held a public funeral and had a section reserved for the press," Seay wrote.

Brinlee, a carpentry and masonry specialist with the Army's 120th Combat Engineer Battalion, was killed by a homemade bomb and was Oklahoma's first National Guardsman to die in combat since the Korean War.

Everyone who attended the May 2004 funeral could gaze upon the slain soldier lying on a white pillow, with his white-gloved hands folded over his crisp uniform. However, members of Brinlee's family including his father, Robert Showler, and his maternal grandfather, Johnny Davidson, were outraged when Peter Turnley's photograph appeared in a photo essay in Harper's August 2004 edition.

"The casket was open for friends and family -- not to gawk at and take pictures and publish them. Not for economic gain," Showler and Davidson's lawyer, Douglas Stall, said.

The pair's case against the magazine and Turnley alleged invasion of privacy, intentional infliction of emotional distress and unjust enrichment, among other complaints. It sought unspecified punitive damages and more than $75,000 in actual damages each on four of the seven complaints.

Harper's Magazine Publisher John R. MacArthur said Dec. 23 the ruling was a victory for the First Amendment.

"We have great sympathy for the family and great sympathy for Kyle and all the other soldiers we depicted in the essay," he said. "I feel we have an obligation to show the coffins and the bodies in a respectful way, and we thought this was a perfectly respectful way to do it."

Turnley had denied the lawsuit's assertions that he was twice warned by the funeral home against photographing Brinlee's body.

Stall said he had not spoken with Showler or Davidson after receiving the judge's order but was considering whether to appeal.