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By virtue of the First Amendment, the media is the only business protected by the Constitution, and of its provisions the First Amendment is the most important because it guarantees all the others. But like any political activity, it has limits, imposed not by the document but by the inherent norms of the society it serves.
The dynamic tension between freedom of the press and the government sworn to protect it was starkly illuminated this week by the Associated Press's decision to publish a photograph of the body of a US Marine killed in action in Afghanistan. Lance Corporal Joshua Bernard, 21 years old, was mortally wounded in an ambush and later died. The AP took photographs and a video of Bernard as he was dying and later published a photo, over the objections of both Defense Secretary Gates and the Marine's family.
Defense Secretary Robert Gates roundly excoriated the Associated Press in a letter in which he characterized the decision to publish as "appalling," and he literally begged the agency to refrain from releasing any image of the dead Marine. The AP published a photo anyway. In an attempt to defend itself, the AP said that the image's release was consistent with its mission to keep the public cognizant of the cost of warfare and that it had made the decision only after both careful internal debate and a discussion with Bernard's family.
While the wishes of the next-of-kin are very important, they should not be the only variable that drives the decisions of either the government or the media. It is easy to feel compassion for a grieving family and to agree that, if the relatives are opposed to it, images of brave patriots who have sacrificed for their nation should not be distributed. But try this hypothetical: a family, unreservedly opposed to war in all its forms, loses a child in combat and demands that the nauseatingly grisly images of the ruined body be published. Are the media obligated to do it? Secretary Gates's assertion that we should comply with the wishes of families is compassionate and sensitive, but it doesn't inform policy, nor should it mandate specific decisions.
If you ask the Associated Press, it will say that it is performing a public service by delivering the truth free of bias, but is there any sentient being that doesn't already know that people die and are maimed in combat? And so the decision to distribute images of the dead or dying appears to be either callously gratuitous or, just as distressing, an attempt to influence how the public views this war. In the end, the AP's defense---that it told the family what it intended to do---is no excuse for what is an abrogation of the responsibility that conveys with the protections of the First Amendment.
I have spent my time in close combat and can report that it is revoltingly messy affair, and I was ever mindful of Robert E. Lee's observation that it is a good thing that war is so horrible because we might otherwise become too fond of it. Purveyors of opinion are entitled to their opinions, but those who loftily clothe themselves in the mantle of our beloved First Amendment owe the document and the public more maturity than they have displayed in this instance.
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I advocate nothing of the kind. My advice is that one should expect very little in the way of justice in a procedure that is not designed to administer it.
