By Donald R. Winslow
COLUMBIA, MO – On Wednesday a judge ruled that the Columbia Daily Tribune had 10 days to turn over 604 unpublished photographs shot by staff photojournalist Jenna Isaacson at an unofficial workout by members of the University of Missouri football team after which a player died last July.
Today, two days later, the Tribune decided to make no attempt to appeal the ruling and published all of the photographs on the newspaper’s Web site. Tribune editors say they felt that if the court and lawyers were going to see the photographs, so should its readers.
Boone County Circuit Court Judge Gary Oxenhandler ruled Wednesday that litigants in a civil lawsuit stemming from the death of MU football player Aaron O’Neal, 19, have a right to all photographs taken by Isaacson.
Tribune managing editor Jim Robertson said in today’s paper, “We believe turning over work materials such as reporters’ notes or photographers’ ‘outs’ — unpublished photographs — runs counter to journalistic independence and could well create a chilling effect in our dealings with news sources. However, as with effective shield laws, judicial review provides a balance between our trepidation and the litigants’ requests.”
“Because the 604 photographs taken during the workout and not subsequently published have become a focus of ongoing coverage of the lawsuit, it’s appropriate that we let readers see them.”
"Faced with a Hobson's choice* I think that the newspaper made a creatively correct decision," New York attorney and journalist Mickey Osterreicher said. "By not appealing they avoided allowing the courts to set a precedent for other journalists in the state, and by publishing the photographs they also avoided establishing a past practice of relinquishing photographs. The parties in the case may now have the photographs through the same means as they would have obtained them had they all been originally published. The Columbia Tribune should be commended for upholding high journalistic principles while continuing to inform the public."
The Tribune's publisher, Hank Waters, and Robertson decided yesterday not to appeal the circuit court judge's ruling, the Tribune reports today in a story by Jacob Luecke. "We all agreed that we really got what we wanted: a judicial review of the request," Robertson said. Luecke writes that the newspaper plans to digitally transfer the photographs to DVDs today and deliver them to lawyers for both sides of the wrongful death suit.
Following a price-per-image reproduction strategy spelled out by the judge in his ruling that the photos must be turned over, the Tribune will be paid approximately $3,000 for the photographs.
Isaacson could not be reached for comment. She is in Kashmir participating in a VII Photo Agency workshop being taught by Gary Knight, a trip that was planned four months ago before the O'Neal lawsuit hearings were scheduled by the court.
The new Web slideshow of the unpublished pictures on the newpaper’s Web site presents Isaacson’s images in the order they were taken.
The original Web slideshow published the night of O’Neal’s death contained only 18 images, and some of those same images were published in the next day’s newspaper as well.
Isaacson photographed O’Neal and other football players for the Tribune in July 2005 as they took part in a voluntary one-hour workout. The photographer noticed O’Neal struggling as the session progressed and photographed him as he collapsed and was then helped from the field. Hours later he died at University Hospital on the University of Missouri campus in Columbia.
In late August 2005 the Boone County medical examiner ruled that O’Neal died as the result of viral meningitis.
The day of the medical examiner’s ruling O’Neal’s father, Lonnie O’Neal, filed a $300,000 wrongful death lawsuit naming members of MU’s athletic training staff, the strength and conditioning staff, and the school’s athletic director. The suit claims that O’Neal died as a result of “neglect” by university staff and that “university officials were callous and fell far short of any reasonable standard.” Lawyers for the O’Neal family have pursued the pictures as part of a wrongful death lawsuit filed by the dead player’s family.
Robertson told News Photographer magazine on Thursday, "We have to make a decision within 10 days about what's next. We're disappointed in the judge’s decision, but we understood we didn't have much law on our side. At this point, we've gone through a process at our expense that would be similar to those set out in shield laws. We not only have to be mindful of costs, but an unsuccessful appeal could make the ruling legal precedent and could have effects beyond this particular case."
Oxenhandler’s ruling to turn over the photographs said “the record is absolutely clear” that no promise existed between Isaacson and the University of Missouri that the photos would be confidential. A lawyer for the Tribune, Jean Maneke, argued on Monday that by being invited to a private practice the Tribune’s reporter and photographer were entering into a “confidentiality agreement,” and that the pictures would be used only in the newspaper and unpublished pictures would be confidential.
The judge also said in his ruling that the unpublished photographs are critical to the O’Neal’s case. “The photos provide a time-sequenced record of a critical portion of the events described in the lawsuit, including the identification of unidentified witnesses and equipment of all kinds and description," the judge wrote in his ruling. Oxenhandler also agreed with lawyers representing the O’Neal family who had claimed that “the photos provide a literal photographic point of view that cannot be duplicated from any other source, known or unknown.”
“I think this really points out the need for a shield law,” Robertson said on Wednesday. Missouri has no law to protect reporters and photographers from court requests for documents, including reporters’ notes and unpublished photographs. Chris Bauman, an attorney for the O’Neal family, said in Monday’s third hearing on the matter, “The law has not changed since our first hearing. There is no statutory privilege for reporters.”
“This underscores the need for press shield laws,” attorney Kurt Wimmer of the Washington, DC, law firm of Covington & Burling told News Photographer on Thursday. “I hope the Missouri legislature will bring up again the proposal for such a law, like one that did not pass this year.” In April, Missouri’s Judiciary and Civil and Criminal Jurisprudence Committee was considering a shield law that would make it more difficult for courts to compel journalists to testify about their sources or turn over material, but killed the idea after deciding the bill was “too complex” and that it needed “more thought and consideration.”
There are 31 states with press shield laws. Press organizations, including NPPA, have repeatedly called for a national press shield law.
"It's a hard time for those who believe in protecting confidential sources," Indiana University professor of law and public service Patrick L. Baude told News Photographer after the judge’s ruling earlier this week. "In general, fueled by scandal in Washington, it seems likely that new and better shield laws are coming soon. But photojournalists may well continue to get the short end of the stick. Superficially, a photograph seems like an 'object' to the legal mind, and courts are not accustomed to protecting 'objects' rather than communications. This ruling is not surprising from a trial court and demonstrates the need for a reassessment of the whole question of protecting sources, both by appellate courts and by legislatures."
* The term "Hobson's choice" is said to be in the name of Thomas Hobson (1544-1631) of Cambridge, England, who had a livery stable and required every customer to take either the horse nearest the stable door or none at all.