A Porsche. A girl. A tragic death.
For those who don’t know, Nikki Catsouras was a beautiful young girl who made a terrible error in judgment, which cost her dearly. Nikki was a rich kid (which is quite relevant) who stole her dad’s Porsche to go for a joy ride. With cocaine in her veins, and fine German engineering at her fingertips, she drove her dad’s $90,000 sports car way too fast and way too recklessly.
She flipped the car and smashed into a tollbooth. In an instant, a vehicle that cost as much as a decent house in Kentucky turned into a twisted ball of useless metal. More tragically, the impact tore Nikki Catsouras’ body apart. Someone at the scene took a series of photographs. The most graphic photo shows the girl’s head split open, the brain cavity empty as the impact squashed it like an over-ripe melon. I will not link to the photos of her, but if you are desperately curious it shouldn’t take too much research to find them. Before you run off to search, let me warn you: If you have a single shred of humanity in you, viewing the photos of this girl’s body will make you feel like you’ve been kicked in the stomach. Crying would not be an unpredictable reaction – not even from the most stoic bastard. You will, most likely, wish that you had never seen them.
The tabloid speaks to the daytime television addled masses
Newsweek reported on the story:
The accident was so gruesome the coroner wouldn’t allow her parents, Christos and Lesli Catsouras, to identify their daughter’s body. But because of two California Highway Patrol officers, a digital camera and e-mail users’ easy access to the “Forward” button, there are now nine photos of the accident scene, taken just moments after Nikki’s death, circulating virally on the Web. In one, her nearly decapitated head is drooping out the shattered window of her father’s Porsche. (source)
Somewhat predictably, the Newsweek piece then descends into tabloid-esque fear mongering and carries the torch for shrill anti-speech advocates. The author obviously spent her share of time talking to the fear-mongering and panic industry leaders, as she seems to be one of the last people on earth who considers the ironically-named “Reputation Defender” company to be a source of reliable information. The author takes only a few paragraphs before she cheekily labels those who posted the photos with a nifty little title, “cyber-aggressors.” The author does not deign to seek out anyone who might have a balanced opinion.
Silverman channels Jefferson, Voltaire, and Brennan
Although Newsweek did not seek out anyone with an opinion based in both law and ethics, preferring those who are pimping their books or their worthless “privacy defense” services, those voices are out there. Suffolk University Law Student, Justin Silverman provides a thought-provoking uncomfortable defense of those who publish the Nikki Catsouras photos — embracing the “hate the speech, but love free speech” view.
Silverman admits that his first reaction was “[s]traight from the gut,” and that he felt that the photos should be taken down. However, like all ethical thinkers, he reflected upon his emotions and meditated on his position. Silverman, giving us a view into his First Amendment bona fides, found himself defending expression despite despising the particular expression at hand.
I now realize my first reaction was the wrong one. Unlike most stories, the lines here are blurred and emotion can trick you into thinking you are advocating the right thing. The right thing, in this case, is not what it first seems. It is to defend that website’s right to show the photos, however disrespectfully it chooses to do so.
According to the Newsweek story, the Catsouras family considers itself out of legal options. The photos are public record after all, released by the police and made fair game to all whom seek to publish them. The dead can claim no privacy rights, and the photos are of only Nikki. These are the realities of firm legal principles that protect the public’s right to know and make it easier for information to be distributed. (source)
Of course, Silverman still despises those who published the photos. Despite his willingness to defend their publication as part of his general support for free expression, Silverman does not let us forget that where the law’s boundaries end, there is still plenty of ground covered by ethics. Silverman is palpably reluctant in his eloquent defense of the right to publish the photos. Nevertheless, while he judges the photographs to be without value, and lectures the reader on ethics, he stays true to his own. Silverman admits that despite his personal distaste for this particular expression, he understands why the right to publish these photos exists, and he vows that he will continue to defend that right.
It’s not a change in the law I advocate. It’s just a reminder that in some cases our rights come at a high cost to others. Though we are free to exercise our rights, we should do so with purpose, for a greater good.
And that being able to publish photos doesn’t mean that we should. (source)
The academic circle jerk naturally disagrees with Mr. Silverman and wants big brother to put us under his loving protective arm. Dan Solove comments at Concurring Opinions:
the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.
“Constitutional right to information privacy?” Hold on. Let me check my Constitution. I must have a different Constitution than Mr. Solove. Now worry not, I’m not one of those “if it isn’t explicitly in the Constitution, it isn’t there at all” types. I agree that there is some constitutional right to privacy. “The First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut, 381 U.S. 479 (1965). However, a constitutional right to information privacy? I can’t go that far.
Nevertheless, I do agree that there should be a right to some form of information privacy. You should be able to feel secure that when the government gathers private information about you, it won’t then go broadcasting it around without some proper purpose. However, this is not private information. This is incredibly public information. If you do something in public, whether it is peeing on the sidewalk, flashing your genitals, tripping over stick, or dying in a horribly gruesome manner — that makes it public. That means that you have no expectation of privacy in that information. Just ask every girl who shows her tits at Mardi Gras and then finds her photos on the internet and every guy who gets arrested on COPS wearing one shoe and a dirty wife-beater.
What drives the publication of these photos? What drives the outrage?
I agree with Mr. Silverman that just because we can disseminate these photos doesn’t mean that we should. One would hope that human decency would compel people to refrain from exercising their right to distribute gruesome, gory, death-scene photos. I considered linking to them to prove a point or two, but my conscience wouldn’t let me. I simply feel too much compassion for Nikki’s parents to be part of the pornification of her death.
Okay, so we have figured out that there was a legal right to publish these photos. We have also figured out that it was ethically objectionable to do so. This was someone’s daughter, and turning their death into mere voyeurism is disgusting. While I do not support the Catsouras family’s legal quest to bring the wrongdoers to justice (because I see no legal wrong in the publication), I can assure you that if I met the person who did publish them, I’d haul off and bust their teeth out and mail them to Nikki’s parents as trophies.
But, that leaves some questions about the human condition. Why have these photos, in particular, become such a target for voyeurism? And, this begs the corollary question: Why has the publication of these photos, in particular, inspired such outrage from the established mainstream media? Why such outrage from the legal academy that accomplished professors would place their very credibility on the chopping block and fall over each other to invent legal theories that even a law student knows are bunk — merely to support their emotional response?
I think the answer comes down to cultural class warfare.
Lets think about what is so different about these particular photos from other gory death photos. Are these the first photos to be splashed across the internet that show twisted and mangled corpses of someone’s loved ones? Someone loved this guy, and this guy too. Rotten.com is full of images of the dead and dismembered. There was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.
But this is different, isn’t it? But why?
This is different because it was a privileged, young, white, girl.
If that accident had been some poor black girl in a Chevy Lumina with duct tape on the fender and cellophane over the brake light, nobody would have given a shit. The photos might have made their way on to rotten.com, but nobody would have forwarded them, and nobody – especially not anyone who went to an Ivy League school – would have wasted the sweat on their fingertips by writing about it.Newsweek’s author and the academic circle jerk are offended because the Catsouras photos offend their notions of how the rabble should treat the privileged. You know exactly what I am talking about. That same privilege that made Natalee Holloway a TV news obsession because she was a privileged white girl on vacation in Aruba. Meanwhile, hundreds of black, hispanic, and just not-as-blonde, and most importantly — POOR — girls go missing in the United States every day. Greta Van Susteren could give a shit about them, but Fox News won’t ever let us forget that a rich blonde girl went missing in Aruba.
It is hardly surprising that privacy advocacy and privilege go hand in hand. The entire concept of a “right to privacy” grows from an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. They were not motivated by fear of an over-reaching government. They were motivated by a threat to their own privilege. In 1890, class divisions were far more distinct than they are today. The poor literally starved to death. Disease ran through American slums like fear of the Swine Flu runs through the advertising addled of today. Meanwhile, the wealthy lived in their Back Bay and Beacon Hill mansions, summered in Newport, and were far removed from the unwashed proles that toiled for pennies a day so that the rich might keep their hands clean. Yet, when the rabble began to see how the “other half” lived in the gossip rags, the Brahmins were aghast. Did they not have a “right” to lord over the proles without the damn proles peeking in their windows? Warren and Brandeis thought so.
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
Ah yes, the rhetorical device of claiming that mere words inflict more pain than bodily injury. Just once, I would love to hear someone say that and then slash their face with a razor blade to see if they really mean it, or if it is just academic circle jerking in action.
Brandeis and Warren trotted out rhetoric that sounds distinctly like the snooty whining of today’s Brahmins and over-educated do-nothings.
Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
Yes, if that looks familiar, you’ve been reading Cass Sunstein, Gail Dines, or Concurring Opinions. I don’t mock this, nor those authors, because I disagree with them. I actually agree 100% with the above paragraph. I fully believe that the idiots that slather across the landscape, driving at 45 miles per hour in the left hand lane, shopping at Wal-Mart, and very successfully passing their genes on to the next generation of Palin supporters and Octomoms are stupid and easily distracted and the world would be much better if they all read The Economist and Plutarch.
However, I’m different from the circle-jerk for two key reasons: 1) I can fully and publicly admit that I agree because I am a snob and I look down on 98% of mankind. 2) Despite the fact that I agree, I would not advocate for my views to be backed up by a change in the law. A citizen should be permitted to be an idiot if that is his choice. Where I part ways with Brandeis, Warren, and their intellectual descendants is when they call for the government to cure the ill. I say let the mouth-breathing NASCAR fans read their gossip magazines, watch their reality TV, and let them get off on watching the upper classes tear themselves apart. This, along with the opiate of religion, is what keeps them from rising up and cutting all of our throats. (By “our” I mean mine).
Lets face it, since the earliest of times, the lower classes have loved to watch their betters suffer. It provides a salve to the daily suffering that comes from being a low-life. If you live in some dump like Lakeland, Flori-duh, driving your crappy car to your crappy job and coming home to your crappy house and watch your crappy TV with your crappy stained t-shirt on while you look at your crappy ugly redneck wife and your stupid inbred redneck children, it must really suck. It must suck even more when you see that there are people like the Catsouras family: Dad worked hard, dad made lots of money, married a hot wife, and had three utterly beautiful daughters. Meanwhile, you’re eating pork rinds and beans in your fart shack of a dump, working at the plant, until it shuts down and your job gets shipped to Mexico. Then, you see the Catsouras family suffer — in large part due to their privilege. A rich kid’s drug (cocaine) plus a rich man’s car, in sunny Southern California, turns from the ingredients of a life that mocks your very existence into the components of a tragedy that lets you guffaw — that your kid won’t ever die like that, because you didn’t ever think too much of education or getting anywhere in life.
A big shiny Porsche and a beautiful young pilot with cocaine in her system turns from an object of envy into a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.
Well, if that’s the case, damn it feels good to shit on the Catsourases, doesn’t it?
And when the rabble shit on the Brahmins, the Brahmins look out for each other and call for changes in the laws.
I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.
That said, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. Those with privilege want to use that ice pick to chip away at our constitutional rights – which only further entrenches their privilege. If we let them, by the time they are done, we will have a patchwork of laws created by extreme outlier incidents, pushed for by the overprivileged like me, the Catsourases, and the legal academy – ushered in by a wail of hysterical shrill cries from those who follow them over the cliff.
Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents – slowly turning our entire existence into one that mimics our time in the security line at the airport.
That is not a result I want to see.
That was an exhilarating read.
Damn you’re good Marc.
Hey what’s wrong with an ugly redneck wife? :)
Some of us are turned on by that sort of thing; I’d rather spend a night with a “wall mart babe” than some old mannequin who is more Botox and silicon than anything elese. :)
Seriously, nice article. When I was reading about people passing around the “crash porn” I immediately thought about the war photos; those were “popular” on the internet and were not a part of any “class resentment”.
Of course you dealt with those.
A very powerful post. You are not getting invited to the AALS defamation section cocktail party this year.
[…] Law: The Legal Satyricon talks about rich, powerful people trying to carve the law to suit them at the expense of the rights of all of us. The issue here is […]
That’s for shit sure.
It’s difficult for me to read an article like yours without shooting off on a tangent. We agree on matters of taste and law (pretty much), but not class. Until humanity lives on our photosynthetic income, or discover that fossil fuels reserves are not finite, possession of a ninety thousand dollar automobile is prima facie evidence of theft — and not from daddy. As we increasingly suffer post-peak deflation, we will see more successful attempts on the parts of the privileged to censor our views of their sordid family soap operas.
As usual a fantastic article. Bravo! There is one thing I might add, that being, that in one sense the original purveyor of these photos, much villified, by all and sundry, might actually have provided an extremely valuable service. Who was this person who took these photos? A highway patrol officer? A man who has had to scrape up the human road kill day after day from the unending carnage that is the consequence of our national love affair with the automobile. Maybe, just maybe, he had seen one too many young person obliterated, mangled beyond recognition, snuffed out in the prime of his or her life. Please link here:
As you can see from this spreadsheet over 40,000 people were fatally injured in car accidents in the last available year of data.
Automobile accidents take a disproportionate toll on the young as reflected here:
And of course it is a truly global epidemic. We wring our hands about swine flu and plane crashes while this goes unreported:
So, perhaps the Highway Patrol Officer was just another accident porn peddler, or perhaps his photography of Nikki Catsouras, was a brave act that forced us to take a hard look at the under-reported slaughter on our nations and the worlds roads. Perhaps it is time to reconsider the central place the automobile holds in our transportation infrastructure. Perhaps we should re-think who gets to drive and at what age. I know this is a terrible digression, and is far off topic, but – as usual Marco inspires.
Wow. Excellent post. I believe the same things, but I’m not in the legal community so I can’t speak about it in quite the same way. To openly admit that you support people’s rights to say (and show) horrible things, even when it could pain you to do so – and has – is very powerful. Even moreso when you take into account that your own peers are the ones trying to censor what you’re taking great pains not to. Well spoken, sir.
Very, very well said.
When the wealthy and privileged talk about the “right to privacy” they mean only their sense of entitlement to a delusion of untarnished dignity–a luxury not available to the rest of the world. And, thankfully so.
One of the most essential functions of the first amendment is that it doesn’t just protect us in what we choose to say or express, but it also resolutely refuses to insulate us from those things we must see and hear and experience. The first amendment demands that we take ourselves and each other as we are, good, bad and dismembered.
It’s hard to say why the people who published the photos did so. Perhaps it was a self-indulgent jab at the upper-crust. But, maybe it was just basic human narcissistic curiosity. Nikki Catsaurus is part of the great big “us” and the moment that she got behind the wheel of a car high on cocaine, her story became part of our story. Her mistakes and poor judgment part of our mistakes and misjudgments.
Is it necessary to see the actual pictures to understand all of that, or to understand how Nikki relates to me and others? I don’t know. I haven’t looked for them. But, it’s not all that far off from asking: Is it necessary to visit Auschwitz to truly understand the holocaust? Is it necessary to see the pictures of tortured Iragi prisoners to fully appreciate how deeply we’ve betrayed ourselves? Auschwitz and Abu Ghraib are obviously more dramatic and global in scope, but the poor judgment that led to those catastrophic events didn’t take place all at once, but happened day by day in small ways.
Something the first amendment understands, and why we’re willing to sacrifice the very real pain of two parents in favor of a principle that disavows self-denial and self-delusion.
OK…privacy/first amendment rights aside, there should be a law that gives Nikki Catsaurus’ father the right to beat the living crap out of whoever did this:
Agreed. I sure wouldn’t vote to convict him if I were on the jury.
Would never look, but good article, Mark. Your descriptions were vivid enough (though not overdone) to overcome the self-delusion jess was talking about.
Unfortunately, yes, any person whether over or underprivileged does need to experience something to fully appreciate it and understand both sides of the issue.
Which is why, when your best friend was killed, you and I turned to each other. Nobody else around us could understand. Remember the inner circle? Should I have sued the Sac Bee for deigning to publish their article on Cliff? Or having the balls to interview me while I was outside the funeral home preparing to walk in and claim my plastic box of boyfriend ash?
I think you’ve hit the proverbial nail on the head with your distillation of the issue here being class-based. Who are the Catsouras’ inner circle? I can only squeeze my eyes closed and hope, that the Catsouras family will realize their pain is unique to only those lucky few who have suffered a tragic, gory loss. But that is the only way in which they are unique. Freedom of speech should not quit because you are heartbroken.
Perhaps the Catsouras family will take a look at what caused the accident in the first place, and try to get their shit together before another daughter decapitates, defenistrates and exsanguinates herself with perhaps the ferrari this time? Build something beautiful from the lesson the collision with their daughter’s death has brought?
Act rather than react? It could happen.
Great fucking post. Jesus. Dead on description of the class matter, and much appreciated thoughts on how that manifests selectively in First Amendment arguments.
“My best friend died in a rather spectacular manner.”
Are the photos of his corpse online? Perhaps the Catsouras family would appreciate seeing them, or at least appreciate knowing that anyone with a computer has easy access to such titillating images.
I’m not saying I disagree with the gist of your post Marc, just pointing out that what’s good for the goose is good for the gander.
Or is it?
They are not online. But, I have not argued that the photos of him, nor of Nikki Catsouras, should be online. I don’t defend the publication of the photos. I defend the legal right to publish the photos.
And, if photos of his corpse were online, I would never advocate for a legal response to that publication. On the other hand, I just might find the person who published them, kick his ass, and then tell the jury that this was my justification for kicking his ass.
Sometimes the First Amendment may protect an action from legal consequences, but that doesn’t exempt anyone from an ass kicking.
This post is one of the best things I have read – online or off – in a long time. Bravo.
Hmmm, you are talking about kicking someone else’s ass? What makes you think that you could? ;)
Fury beats strength and size any day.
Where I come from, that kind of remark erupts in a sudden bout of lawn-wrestling.
I followed the link from the picture of the cute African American girl. Then I tried to find out a little more about her. See
Wow. That’s quite a read. Thoughtful. Intelligent. Insightful. The writing is excellent. I stumbled upon this website and I have just bookmarked it. Thank you for giving us something worth reading.
Okay everbody. I have read these things you have written and for all the legal jargon and big wording… some of you are just full of shit! (sorry)
It is not the fact that the pictures got on the net. It was how they were used once they were there! Nikki’s family has been tormented with sick assholes out there that emailed them to her father with some rather discusting and otherwise hatefull captions!
Then this “forum” of yours wants to only argue the legal right to publish these photos, just because Mr. Catsouras has money! Hell people, I’m an hopelessly unemployed 42 year old man, yet I feel terrible for Nikki’s family.
Yes, that young lady made a terrible mistake getting involved with cocaine and then racing in a type of automobile that most men in this country can’t handle. But her memmory and her family does not deserve to be tormented by some heartless gore lover.
I too have seen the pictures in question, It does not bother me that death can be found in pictures nor sloppy sex or anything else. “Freedom of the press” as some of you noted the Bill of Rights. But when images or words are used to “deliberatly” hurt and torment in hatefull ways as the crash photos of Nikki Catsouras have been used against her family, People, that is not American Freedom, that is just wrong! Even if the legal system believes there is a God or not, there has to be limits of how far the human race goes or else our own morals are just going to hit rock bottom and we just tear at each other throats like animals, and say we have the “legal right” to do so.
Yes guys, *sigh* I have my own conspiracy theories about the rich and famous in this country. The “little” people like me have no chance of fighting injustice because I can’t afford it.
I can’t believe I’m arguing ethics with lawyers *wink*, but Mr. Catsouras did not deserve having a picture of his mutilated daughter thrown in his face in a hatefull, hurting way. I’t would kill me if I had a daughter of my own. How would you feel?
Reading comprehension – F.
[…] wrote about the ethical concerns over publishing the photos here. Clearly the case is ripe with moral and legal debate. Because the photos are so gruesome, the visceral reaction of most is to punish anyone who […]