Dale Earnhardt autopsy photos pitted public's right to know versus famous family's privacy

Dale Earnhardt’s death on the last lap of the Daytona 500 in 2001 was the beginning of what would become a battle over his autopsy photos — pitting public records and openness in government against a grieving and prominent family’s determination to keep the photos private.

It was an unsettling and unpleasant battle for Barbara Petersen, who was the president of  the First Amendment Foundation at the time and was arguing that the media should be allowed to review the photos to ensure that NASCAR’s portrayal of what happened was accurate.

Earnhardt, who died Feb. 18, 2001, 20 years ago, was known as the "Intimidator."

He had many fans, and they made their displeasure of media requests for the autopsy photos known.

“When I say it was awful. It was awful,” Petersen said during a recent interview. “I was getting death threats. People were threatening to kill me. They were threatening to kill my husband. They were threatening to kill my dogs.”

Petersen recalled that the Orlando Sentinel made a public records request for the autopsy photos of Earnhardt.

“And that’s when all hell broke loose” Peterson said.

Why did newspapers want the photos?

The Sentinel had been investigating fatal crashes on NASCAR tracks and wanted to view the photos to see for itself what the cause might have been. The paper said it had no intention of publishing the photos.

The Daytona Beach News-Journal covered the events but did not attach itself to requests for the photos.

Earnhardt’s wife, Teresa Earnhardt, fought the release of the photos, saying it would be a hurtful invasion of privacy for the family.

In March 2001, the Sentinel and Teresa Earnhardt reached an agreement that would have allowed a medical expert to view the photos and provide the newspaper an assessment of what exactly caused the famous driver’s death.

Volusia County opposed the agreement between Earnhardt and the Sentinel, saying it was illegal because there was no exemption for autopsy photos.

Former Volusia County Circuit Judge Joseph Will, who is now a senior judge, issued an injunction which blocked the release of the photos.

Will declined comment for this article.

The Florida State Legislature in March 2001 fast-tracked a law called the Family Protection Act into effect that retroactively prohibited the release of autopsy photos. Then-Gov. Jeb Bush signs it into law in May 2001.

“I still think it’s one of the worst public records exemptions that passed in my 25 years at the foundation,” Petersen said. 

Petersen said the First Amendment Foundation worked closely with legislators and the late Sen. Jim King, who was the Senate sponsor of the bill, to try and reach a compromise.

In the end, all the First Amendment Foundation was able to add to the bill was a provision allowing access if a court determines “good cause.”

Not about Dale Earnhardt

“This wasn’t about Dale Earnhardt,” Petersen said. “It was about access to information that goes to the credibility of law enforcement and the whole process. Under the law now we have access to the medical examiner's report but we do not have access to the photos. The report is subjective. The photos are objective.”

Larry Bartlett,  an attorney who has since become the Volusia County Property Appraiser, was at the track that day watching his favorite driver, Earnhardt, competing in his famous No. 3 Chevrolet. He remembers it had been a beautiful day.

“Then he comes around and that happens,” Bartlett said.

Bartlett said his immediate role was representing International Speedway Corp. and NASCAR to block anyone from getting the photographs until Teresa Earnhardt could join the battle.

“Hold them at bay until she and her team could come in and take over,” Bartlett said.

He said he was glad to be able to help his favorite driver’s family.

“This was personal,” Bartlett said. “This is something that no family wants to be released. And now there are protections in place to keep that from happening.” 

The Independent Florida Alligator, a student-run newspaper in Gainesville, continued the fight for access. The newspaper was represented by Thomas Julin, who had also been an editor at the paper.

He said the Alligator had succeeded in convincing a judge to allow the public and the media to view gruesome photographs from the Danny Rolling serial murder case in Gainesville. Rolling, a drifter, stabbed to death four University of Florida students and one from Santa Fe College, in August 1990. Rolling was executed in 2006.

“The decision in that case was seen as a fairly important precedent establishing that while there are some privacy rights to be considered, that courts can allow public and press access at least by viewing of photographs so that the reporters could confirm for themselves the facts as they were alleged to have occurred in the case by the prosecution,” Julin said.

What was the cause of Earnhardt's death?

There was great controversy at the time surrounding what exactly had caused Earnhardt’s death: Was it a failure of a seatbelt or the lack of a head and neck restraint, which allowed the driver’s head to violently whip in the crash, Julin said.

“The thought was only by seeing the photographs and by using your own judgement as well as having the photographs to show to other experts could you really determine what was the cause of death,” Julin said.

The Alligator, which was not part of the agreement between Earnhardt’s family and the Orlando Sentinel, pressed on.

The paper in October 2001 filed an appeal with the 5th District Court of Appeal in Daytona Beach, challenging the Family Protection Act. But the appeals court ruled against the paper and upheld the law.

The Alligator then took its case to the Florida Supreme Court, which by a 4-3 vote declined to review the case in 2003.

The Alligator took its case to the U.S. Supreme Court, which in 2003 also declined to review it.

Julin said there was no question at the time that Florida Public Records law required that the public have access to autopsy photographs.

“Frankly, there was no question at the time; that’s what the law was at the time. We said we wouldn’t accept the deal,” Julin said.

“Teresa was claiming that this would be an invasion of her privacy rights and our position was there was not an invasion of privacy rights. The law was constitutional and you had to release the records. Period,” Julin said.

He said there was no intention of publishing the photographs. NASCAR fans were still outraged.

“We also said we have no intention of publishing these photographs. We are just trying to find out what was the cause of death here,” Julin said. “But the NASCAR fans who loved Dale obviously were just outraged that anyone would insist upon even seeing the photographs.” 

But the legislature and governor soon changed the law, retroactively, blocking the Alligator’s access to the photos, despite the publication having made the request to see the pictures before the law was changed. Courts upheld the law.

Other states follow Florida's example

The case led to some backlash across the country and other states followed with restricting access to autopsy photos and criminal case photos.

“Which in my opinion is not a good development, because historically the public access to records in cases where you have violent deaths, it's very important for the public and the press to be able to see what actually happened,” Julin said.

He said the the judge in the Rolling case in Gainesville allowed the viewing and not the copying of the photos in that case.

Julin said the judge explained in a radio interview that “he felt the community needed the catharsis of being able to see the crime scenes. And if the photographs remained sealed it would be even worse in terms of psychological damage to people.”

He said critics of allowing access to such photos are missing an important point.

Also continuing to fight to see the photographs was a former DeLand resident named Michael Uribe, who has posted on his website autopsy photographs of NASCAR drivers who had died in previous crashes, such as Rodney Orr and Neil Bonnett. Both men died in practice crashes ahead of the 1994 Daytona 500.

Photos of other drivers had been published online

“He had a different point of view,” Julin said of Uribe. “And he did want to publish the photographs and his point was that race car driving is a terribly dangerous thing and it’s actually killing people and he was saying that he thought he had a right to publish those photographs to inform the public about the dangers of driving.”

Teresa Earnhardt was represented by attorney Jud Graves, who in an interview said he is a member of both the Florida and Georgia bars and has “admired” the openness of records laws in Florida, adding that Georgia has similar laws. 

“The issue was whether there should be a narrow exception to protect families like the Earnhardt family and loved ones from extraordinarily gruesome and inappropriate photographs that would be exploited in things like the National Enquirer and similar things like that and really damage the family’s privacy at a time when the preservation of their privacy was absolutely essential,” Graves said.

Graves said the Family Protection Act allows judges to review and grant a request to review autopsy photographs.

“And so the judge was put in as a gatekeeper to ensure that the families right to privacy was balanced against the public’s right to know and an appropriate decision was made about how much disclosure, if any, of the controversial material should be done,” Graves said.

Graves praised Teresa Earnhardt.

“She was determined,” Graves said. “She foresaw that those photographs were highly likely to be exploited in the media right away. And she took prompt action to stop that."

He said Earnhardt’s crash was thoroughly investigated and witnessed by many people, including those watching on television.

“It’s almost as though you could never satisfy everybody at every step,” Graves said. “But our team really did all it could to try to make sure that all the expertise that was needed was brought to bear and that every reasonable question was answered with respect not only to the collision itself but the autopsy and its thoroughness.”