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'Dale Earnhardt law' may shield Smith autopsy photos

Story Highlights

• Anna Nicole Smith died Thursday in Florida
• Florida blocks the release of autopsy photographs without a judge's order
• Violators face fines, jail time
By David E. Williams
CNN
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(CNN) -- Anna Nicole Smith spent much of her life in front of the cameras, and more pictures of the model/reality star are likely to surface now that she's dead. But a law passed after a race car driver's death should ensure that her autopsy photos are never published.

Smith, 39, died Thursday after she was found unconscious in her room at the Seminole Hard Rock Hotel & Casino in Hollywood, Florida.

Investigators at the Broward County medical examiner's office performed an autopsy Friday.

Florida's public records laws are very open, and the state constitution guarantees that "every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf." (See how autopsy records laws vary by state)

In 2001, Florida passed a law, known as the Earnhardt Family Protection Act. The bill, named for NASCAR legend Dale Earnhardt, made autopsy photographs, video and audio recordings confidential. Violators could be charged with a third degree felony that could be punishable by jail time and up to a $5,000 fine.

Even if the photos are leaked, it's unclear how much they would be worth, said Brandy Navarre, owner of the celebrity photo agency X17online.com.

"Autopsy photos are not something that we've ever been offered, and we wouldn't actively search for something like that. It's not really something that we would do," said Navarre. "We're pretty careful about possessing or distributing or licensing pictures that might have been gathered in an illegal way or that someone might try to sell to us who doesn't have the rights to the images."

Cell-phone cameras create amateur paparazzi

She said photographers and amateur paparazzi would be more likely to offer pictures of her collapsing or being treated by emergency personnel at the hotel.

"In situations like this, someone always tends to have a camera, and now with cell phone cameras almost everyone has a camera on them at all times," Navarre said.

She said she was a little surprised that pictures have not already surfaced.

Navarre said someone called her husband within hours of Smith's death, offering to sell racy pictures that apparently were taken several years ago.

"I think what would happen more in our case would be people offering photos from her past, maybe at a party," Navarre said.

She said those pictures probably won't be that valuable because the major magazines, the ones that pay big money for the right shot, probably won't want them.

"It's not the five figures people have in their minds for stuff like that, it could be $1000, kind of a small amount of money," Navarre said. "You never know. If it was really something that really, really shed some light on her as a person and her history then it could be much more, but it's really hard to say."

Earnhardt was killed in a crash on the final lap of the 2001 Daytona 500, and some news organizations sued to see the photos for stories about racing safety. Earnhardt was the fourth NASCAR driver in less than a year to die in a crash.

Attorney Parker Thomson, who also represented the Earnhardt family, said when fashion designer Gianni Versace was killed in front of his Miami home, he was able to get the autopsy photos sealed without much of a fuss.

"By the time Earnhardt came around there were either four or six Web sites which were exclusively devoted to autopsy photos and there may be more now," he said.

Public's right to know not 'good cause'

Jon Kaney, the general counsel for Florida's First Amendment Foundation, represented some of the media groups in the case and argued that the law was too broad.

"You can only gain access with a court order based on what the statute says is good cause, and it's clear from the ruling in the Earnhardt case that the public's right to know is not good cause," he said. "Any way you would frame the news gathering interest would be rejected."

Thomson said that limits the risk of the photographs being leaked.

"If they do appear, you've got somebody you could actually go after because they would have had to apply for it," Thomson said. "If they were the only person who had access to it, it had to be them or somebody in the medical examiner's office."

Kaney said state courts have ruled that the media can have access to photographs that are used in a court case, because "the First Amendment does not allow secret evidence."

He said law specifies photographs that are held by a medical examiner, so it is unclear whether an unauthorized picture taken in an autopsy room would be covered.

"If a person could breach the security and be in the room where the autopsy was performed, those photographs would be within the definition of the autopsy photograph as the statute defines it," he said. "But another interesting question would be that they're not in the M.E.'s hands so the application of that would be dicey."


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Anna Nicole Smith's body arrives at the Broward County medical examiner's office. Her autopsy photos may be protected under a 2001 Florida law.

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