Widow, Paper Reach Accord

Teresa Earnhardt was still in shock over the loss of her husband when she received another piece of jarring news: A newspaper wanted Dale Earnhardt's autopsy photos so a doctor could determine the cause of his death.

That's when the tragedy became more than just about the loss of stock car racing's most colorful, swashbuckling and sometimes reckless hero.

Instead, it turned into a civics and sociology lesson about a family's plea for privacy and the public's right to know.

The Orlando Sentinel and other news organizations maintained they had the right to public records, while judges and Florida lawmakers sought to curtail that right in the name of common decency. Adding considerably to the debate was a group of racing fans who sent a message to an ever-expanding media they view with caution.

On Friday, Mrs. Earnhardt and the Sentinel agreed to allow an independent medical expert to see the photos, and for the newspaper to ask the expert three questions concerning the head injuries. Then, the photos will be sealed.

Still, the ruling does not prevent other media from asking for access, and the legislative process has yet to play itself out.

Ten years ago, before the Internet, cable-TV talk shows and the 24-hour news cycle became a pervasive part of our culture, a request like this might not have caused such a stir.

"But we're in a period in which all of the ways we used to make arguments about the First Amendment and freedom of the press have changed," said Bob Thompson, professor of media and popular culture at Syracuse University. "The old arguments were made in an era in which all this stuff wasn't available to everyone in a matter of minutes. The Earnhardt scenario is a great test case as to how we ultimately answer these questions."

The argument might never have reached this point were it not for the Sentinel's ongoing effort to play a leading role in motorsports coverage.

About 18 months ago, the newspaper hired Ed Hinton, one of the most prominent racing writers in the country. Among his first projects was a comprehensive package about safety in motorsports. It took nearly six months of reporting.

A week before last month's Daytona 500, the Sentinel published a three-part series that took an unflinching look at safety in the sport and the way its sanctioning bodies dealt with it.

Among the conclusions was that, of all the sanctioning bodies, NASCAR, which operates the top stock car racing circuits, seemed to be the most secretive, most unresponsive and least likely to adopt safety measures that had been proven to save lives.

The Sentinel also reported that a device used to protect the heads and necks of drivers the Head And Neck Support (HANS) device could have saved the lives of seven NASCAR drivers who appar to have died of basilar skull fractures and similar injuries in the past 10 years.

A basilar skull fracture occurs when the head whips forward violently, essentially separating the base of the skull from the spinal cord. Among those whose deaths could have been prevented, the newspaper reported, were Kenny Irwin and Adam Petty, two of three NASCAR drivers killed in 2000.

The Sentinel wants to know whether Earnhardt's death might also have been preventable.

On the final lap of the Daytona 500, Earnhardt's black Chevrolet crashed into the wall on Turn 4 at an estimated 170 mph. The autopsy said Earnhardt had a skull fracture that ran from the front to the back of his head. No attempt was made to determine whether a HANS device would have saved him.

The next week, NASCAR announced that Earnhardt's seatbelt broke, probably causing his face to slam against the steering wheel. In 52 years of auto racing, such a seatbelt malfunction never had happened.

Even before this revelation, Dr. Steve Bohannon, the attending physician at the accident and a contracted employee at Daytona International Speedway, said he doubted a HANS device would have saved Earnhardt. The seatbelt malfunction strengthened his belief.

Unconvinced, the Sentinel planned for a head-trauma expert to look at the autopsy photos and try to determine the cause of the skull fracture.

Within days, Mrs. Earnhardt went to court to prevent release of the photos, which led to a judge calling for the mediation that resulted in Friday's agreement.

Florida's public-record laws are among the most liberal in the country. Under the current statute, most autopsy photos are considered public records.

In an emotional statement March 4, Mrs. Earnhardt relayed her fears.

"I want to let you know that if access to the photos is allowed, others will demand them, too," she said. "And make no mistake, sooner or later the photos will end up unprotected and published ... and most certainly on the Internet."

Indeed, one Web site is pushing for unfettered access to the photos.

But the newspaper stated all along that it has no intention of publishing the photos.

"We understand how, at first blush, this may look ghoulish to some," Sentinel editor Tim Franklin said. "But there's really a crisis in safety in NASCAR. If there had been four deaths in nine months in the NFL or boxing, there would be more inquiries than you can imagine."

A loyal and energetic group of NASCAR fans have let their feelings about the Sentinel be known. The newspaper has received about 10,000 e-mails, almost unanimously scolding it. About 40 subscribers canceled their papers.

One fan, Cheryl Mundy of Mocksville, N.C., has spent weeks working the phones, urging race fans to boycot companies that advertise in the Sentinel. She cares little about the Sentinel's pledge not to publish the photos.

"There's got to be some type of stop point, when you get to counting hairs and splitting hairs and everyone can see your dissected toenail," Mundy said.

Mrs. Earnhardt also asked fans to lobby lawmakers to change the law and protect her husband's autopsy photos.

Within days, a Daytona Beach lawmaker introduced a bill that would require a judge to approve the release of any autopsy photos. Florida Gov. Jeb Bush, who received 14,000 e-mails on the issue, has vowed his support.

"This is timely legislation," said Bush, who talked to Mrs. Earnhardt earlier this month. "I told her I felt we could craft legislation that protected the traditions of this state in terms of public information when the public interest is at stake, but also be sensitive to the right of privacy as well."

First Amendment advocates have their doubts.

They have noticed a significant increase in legislation nationwide that calls for limiting access to records and more respect for personal privacy. In some areas, especially with the Internet playing such a major role in society, they support the measures.

But they don't want to see a rush to judgment in the Earnhardt case. They say there are legitimate reasons to request autopsy photos, and they fear the proposed bill will turn every request into a difficult legal process.

Last week, several news organizations released statements supporting the Sentinel and decrying the quick introduction of new legislation.

"If you had to choose between a tribute to Dale Earnhardt and the rights of open records in Florida, that's an easy choice right now," said Anders Gyllenhaal, chairman of the American Society of Newspaper Editors' Freedom of Information Committee. "But 10 years from now, will people see it the same way? It's not the right way to make a tribute to this man."

Friday's settlement didn't come as much comfort, either.

"What happens is that this will become the standard next time somebody wants to deny you or me access, they'll point to this case," said Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee.

NASCAR fans seem unconcerned. They're getting the exact response they want from lawmakers.

"The majority of fans I've talked to say they would support Jeb Bush because of this," Mundy said. "His popularity has increased 250 percent."

NASCAR continues to investigate the accident. NASCAR president Mike Helton claims any safety problems NASCAR has aren't as bad as what has generally been reported.

He takes offense at the notion that NASCAR is slow to react, while conceding it is selective about what information it reeases to the media.

"The perception is being built that we don't care, and that's bunk," Helton said. "There's proof that we do, but no one cares to look at that side."

Helton agrees with the Earnhardts about the autopsy photos. He doubts any more information can be gleaned from the photos than from the autopsy report, which already has been released into the public domain.

The other piece of evidence that might shed light on the cause of death Earnhardt's car sits in a building near Charlotte, N.C. NASCAR has brought in independent experts to try to determine how to prevent future fatalities.

"If there's something specific to help that process, we will come forward with conclusions that are very decisive," Helton said. "But we will not come forward with theories or hypothetical situations. Others may choose to do that, but it doesn't serve any purpose."

NASCAR won't let media outlets look at the car, although some pictures of the wreckage have been released via the autopsy report. When NASCAR is through investigating, the car will be returned to owner Richard Childress.

Having won the right to have an independent expert view the pictures, Franklin has promised the Sentinel will publish the results of the analysis no matter whose theories they agree with. Meanwhile, the legislative process continues.

Regardless of the outcome, the impact of the case already has been felt.

Those on the Sentinel's side believe the public has sacrificed an important First Amendment right for the noble, but possibly misguided, sake of common decency.

Those who side with the Earnhardt family believe the media has lost another piece of its soul in the name of unfettered, possibly unnecessary, access to information that could be misused in the wrong hands.

"This is one of those emotional cases that isn't easy to solve," Thompson said. "Everyone involved has to be careful of how we go down this path."

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