In 1983, two-year-old Phillip Buell died of head injuries, which his mother's boyfriend at the time, Kenneth Marsh, testified came from the boy falling off the couch and hitting the fireplace hearth. Kenneth was convicted of second-degree murder and later acquitted, but the story still captured the public interest, especially after the prosecutor in the case, Jay Coulter, made images from the autopsy report that he had photocopied available to two different news outlets.

On Wednesday, Ninth Circuit judge Alex Kozinski ruled that San Diego County, Coulter's employer, violated Brenda Marsh's due process constitutional rights when Coulter made photocopies of 16 images in her son's autopsy reports for himself and later gave them out to a newspaper and TV station. While many states and counties have laws forbidding the dissemination of death-scene images unless the photos are given out by family members, this ruling is the first that says it is also a constitutional right for family members to be able to protect their privacy after a loved one's death.

In his decision, Kozinski writes:

Marsh claims that when she learned that Coulter sent her son’s autopsy photograph to the press, she was “horrified; and suffered severe emotional distress, fearing the day that she would go on the Internet and find her son’s hideous autopsy photos displayed there.” Marsh’s fear is not unreasonable given the viral nature of the Internet, where she might easily stumble upon photographs of her dead son on news websites, blogs or social media websites. This intrusion into the grief of a mother over her dead son—without any legitimate governmental purpose—“shocks the conscience” and therefore violates Marsh’s substantive due process right.

Coulter was not punished, as the court found that a clear precedent for the violation of constitutional rights had not been established for the dissemination of autopsy photos.

Orin Kerr of the law blog The Volokh Conspiracy noted that he is “often skeptical when judges find new rights that no one noticed before.” Still, the ruling is significant in granting privacy rights to family members who could be hurt by that “viral nature of the Internet,” and might come into play when gruesome photos are dredged up by websites in the future.

“So far as we are aware, then, this is the first case to consider whether the common law right to noninterference with a family’s remembrance of a decedent is so ingrained in our traditions that it is constitutionally protected,” the court wrote. “We conclude that it is.”