Appeals court rules against family of soldier

The Associated Press
Posted : Saturday Mar 24, 2007 11:24:23 EDT

OKLAHOMA CITY — An appeals court has ruled against family members of an Oklahoma National Guard member whose casket was photographed by Harper’s magazine.

The 2004 funeral of Sgt. Kyle Brinlee at the Pryor High School gymnasium was attended by 1,200 people, including Gov. Brad Henry, who spoke.

“While it could be argued that publication of [the photo] without prior authorization was in poor taste ... it does not constitute an actionable claim under any of the theories advanced by plaintiffs,” the 10th U.S. Circuit Court of Appeals ruled March 23 in a 21-page decision.

Robert Showler, Brinlee’s biological father, and Johnny Davidson, his maternal grandfather, alleged, among other things, that the magazine and photographer Peter Turnley invaded their privacy, deceived them and unjustly enriched themselves by publishing the photo.

A federal judge in Muskogee ruled in 2005 that Harper’s and Turnley were protected against the lawsuit by the First Amendment because the photo was taken in a public place for a newsworthy article, The Oklahoman reported from Denver.

The judge also ruled against relatives on other claims, and the family appealed.

In the 3-0 ruling March 23, the appellate judges said they “need not address the First Amendment defense asserted by defendants” because they concluded the judge in Muskogee correctly decided against the family’s claims.