Developing a Jurisprudence of the Visual

Since the mid-nineteenth century, photographs in legal cases have been objects of dispute, evidence, and, increasingly, components of ever-sophisticated multimedia courtroom argument. Their incorporation has been uneven and multivalent, met alternately with enthusiasm or apprehension depending on courts and circumstances (Madison Reference Madison1984; Mnookin Reference Mnookin1998; Bandes and Salerno Reference Bandes and Salerno2015). Law's deepening engagement with images has prompted fears ranging from the potential redistribution of decision-making power between courts and courtroom actors, the possibility such media will impoverish legal determinations (“sacrificing depth for flash—turning legal arguments into memes”), and, most prominently, the “danger that implicit biases and naïve realism … will infect judges' decisions” (Porter Reference Porter2014, 1694).

To the extent that visual data help decision makers to comprehend challenging material, enhance the persuasiveness of courtroom argument, or depict information incapable of written description, as in gruesome visual evidence, pictures are a boon. Compared with written or verbal forms of evidence or presentation, “images are efficient, accessible, and memorable” (Porter Reference Porter2014, 1687). Although images may clarify or compel, they may also deceive and distort. The emotions triggered by gruesome visual evidence such as autopsy and crime scene photographs may prejudicially bias jurors and inhibit decision making, outweighing its probative value (Douglas, Lyon, and Ogloff Reference Douglas, Lyon and Ogloff1997; Bandes and Salerno Reference Bandes and Salerno2015). The emotions produced by visual evidence may also increase conviction rates, regardless of whether content is gruesome or neutral, and inflate jurors' perceptions of the sufficiency of prosecution evidence (Bright and Goodman-Delahunty Reference Bright and Goodman-Delahunty2006).

By seeming “automatically understood” and “intuitively credible” (Feigenson and Spiesel Reference Feigenson and Spiesel2009, 10), images induce viewers to believe they represent reality neutrally and objectively—a notion referred to as naïve realism. So defined, the problem of naïve realism has a long history in law. Mnookin traces photographs' first incorporation into courtrooms as visual representations. Previously, visual representations mostly included hand-made or unofficial maps, drawings, and diagrams that were understood as merely illustrative of testimony rather than evidence themselves. Despite the sedimentation of this “illustrative approach” into legal doctrine, in subsequent decades the public and the judiciary viewed photographs as “silent witness[es]” (1998, 73). Accorded an authoritative status, photographs came to elevate all visual representations to “the boundaries of evidence, affirming them as persuasive even if not quite proof” (71).

Today, it is still feared that “neither courts nor lawyers fully understand the capacity of photographic evidence for deception or improper influence” (Madison Reference Madison1984, 705–6). Whether lawyers deploy images in courtroom argument (Porter Reference Porter2014) or judges admit them as evidence in criminal trials (Biber Reference Biber2007), visual media may greatly shape case outcomes (Feigenson and Spiesel Reference Feigenson and Spiesel2009). For instance, law enforcement and judges who adopt a reductionist interpretation of surveillance footage can bring about a wrongful conviction, as was true in one high-profile Australian case analyzed by Biber (Reference Biber2007). This risk is only heightened by the expansion of surveillance practices (Ericson and Haggerty Reference Ericson and Haggerty2008).

An emerging jurisprudence of the visual urges courts to become more savvy media consumers and to adopt a constructivist stance toward visual data that recognizes all representations as necessarily partial and promotes decoding how images' content, context, and visual mode of presentation impact what they appear to convey unproblematically. This project draws insights from media theorists who have questioned photographic objectivity (Berger [Reference Berger and Trachtenberg1968] 1980; Kilby Reference Kilby2013) and who argue that the meanings and “evidence” accorded to photographs are not inherent within the frame itself but are derived largely by context, circulation, and audiences' interests and cultural repertoires (Smith Reference Smith2007, 15).

Given the proliferation of visual data in courtrooms and legal cases, there is a clear need for a visual jurisprudence, yet its current scope is circumscribed. First, its focus on how judges and, to a lesser extent, jurors see photographs (Biber Reference Biber2007; Porter Reference Porter2014; Rolph Reference Rolph, Wagner and Sherwin2014) directs attention away from the pivotal role of litigants who present such evidence. Litigants instruct courtroom actors on the meanings and weight to ascribe to images. Litigants may induce trust in images by emphasizing their objectivity, downplay their unique evidentiary worth, or even convince courts of alternative readings. Defense counsel for police officers in the Rodney King trial, for example, famously translated footage of a beating, frame-by-frame, into permissible police protocol (Goodwin Reference Goodwin1994).

Second, courts do not merely confront pragmatic or conceptual issues regarding images' objectivity. Examining British privacy disputes over media outlets' publication of celebrity photos, Rolph (Reference Rolph, Wagner and Sherwin2014) concludes that courts uncritically treat photographs as they would written information. According to Rolph, this equivalence overestimates images' privacy harms by minimizing how discursive interpretation shapes photographic meaning. This finding draws attention to how disputes over disclosure raise concerns beyond images' objectivity, such as their privacy harms. Determining whether images warrant viewing among courtroom actors—as in cases involving gruesome evidence—involves different criteria than when disclosure is for the public at large, wherein questions may arise about privacy invasion, the First Amendment, public safety, and the public's right to know.

Privacy concerns over photographs are longstanding; indeed, the advancement of photographic technology arguably catalyzed the legal establishment of privacy law itself. Warren and Brandeis's landmark 1890 article setting forth a “right to privacy” recognized the potential for “[i]nstantaneous photographs” to violate individuals' “right to be let alone” (cited in Zeronda Reference Zeronda2010, 1136). While concealing the context of their creation, photographs immortalize scenes and magnify details that would have otherwise been momentary or invisible. Then, the photographer has ultimate control over where and how to circulate the content. Technological advancements such as institutional data keeping and the Internet (Rule Reference Rule2012) may further heighten photographs' acute reputational and emotional harms—and many argue privacy protections have not kept up (Coleman Reference Coleman2005; Citron Reference Citron2010; Zeronda Reference Zeronda2010).

Courts uniformly deny individuals a “right to privacy” in public spaces, even when cameras surreptitiously capture intentionally concealed body parts as in “upskirt” photographs (Coleman Reference Coleman2005; Zeronda Reference Zeronda2010). Plaintiffs involuntary photographed in public are more likely to obtain redress if the images are deemed insufficiently newsworthy, artistic, or of public interest to merit First Amendment protection (Zeronda Reference Zeronda2010).

Efforts to help courts “take images seriously” (Porter Reference Porter2014, 1756) have not given sufficient attention to images' unique privacy harms or other issues beyond photographic objectivity. However, in Freedom of Information Act (FOIA) disputes, nonevidentiary concerns about images' public disclosure, such as their privacy implications and national security risks, may predominate.

FOIA and Photos: Privacy, Public Knowledge, and Public Safety in the Context of Visual Disclosure

Passed in 1966, FOIA aimed to open executive branch agency records to the public, shifting from a “need to know” to a “right to know” doctrine.Footnote ² Though FOIA disputes over images may increase due to expanding government surveillance, including through digital visual technologies (Ericson and Haggerty Reference Ericson and Haggerty2008), as of yet relatively few major cases have centered on images.

Arguably the most prominent FOIA dispute over pictures, National Archives and Records Administration v. Favish (2004) concerned death scene photographs of Vince Foster, Jr., President Clinton's deputy counsel, who committed suicide in a Virginia park. Recognizing that the images would likely be disseminated extensively online, thereby exacerbating privacy harms for Foster's family, the Favish Court for the first time ruled that privacy interests extend to family members under FOIA. Although the Court quoted at length testimony of Foster's widow, who described her “nightmares and heart pounding insomnia” (Favish  2004, 167) when she viewed one image leaked to news media of the gun in Foster's hand, neither the Court nor commentary (see, e.g., Halstuk Reference Halstuk2005) explicitly discussed whether photographs as data, and not solely the Internet, implicate particular privacy harms.

However, recent disputes over mug shots involve more focused debate over photographs' unique privacy harms and probative value. In 1996, the Sixth Circuit, in Detroit Free Press, Inc. v. United States Department of Justice, affirmed that FOIA permits the release of booking photographs on the basis that they do not constitute an unwarranted invasion of privacy and may even serve the public interest. Consider, the district court asked, if no one had videotaped Rodney King (Detroit Free Press I  1996, 98)? Nearly twenty years later, however, the Sixth Circuit reversed after the same plaintiffs sued the US Marshal's Office under FOIA after being denied access to booking photographs of four police officers (Detroit Free Press II  2016). Overruling Detroit Free Press I and aligning with the Tenth and Eleventh Circuits and Justice Department policy, the Sixth Circuit Court stated that although two decades ago it had thought booking photographs harmless, “time has taught us otherwise” (Detroit Free Press II  2016, 10). The appeals court described humiliation and reputational injuries in the information age, noting that “[t]he internet and social media have worked unpredictable changes in the way photographs are stored and shared … they can be instantaneously disseminated for malevolent purposes” (Detroit Free Press II  2016, 10).

Detroit Free Press petitioned the Supreme Court to take the case, but was denied. In cert briefings, the Justice Department emphasized the privacy interests entailed by disclosure, particularly in light of websites profiting from hosting mug shots by requiring payment for removal. Though Detroit Free Press asserts that booking photographs are “‘quintessential public information,’ no different than the name of the accused,” news coverage reports that the Justice Department maintains otherwise: “The adage that one picture is worth a thousand words is apt in this context: The visual depiction of the individual's appearance … reflects a uniquely powerful and lasting image of what can be one of the most difficult episodes in an individual's life” (Guillen Reference Guillen2017). Interestingly, plaintiffs in similar cases, such as Karantsalis v. United States Department of Justice (2011) and World Publishing Co. v. United States Department of Justice (2012), have upheld the richness of photographic detail to justify disclosure, as humiliation or smugness on individuals' faces may reveal aspects of their treatment by law enforcement better than words. Commentary on these cases raises but does not sustain attention to photographs' privacy harms and probative worth (Rosedale Reference Rosedale2014; Bruno Reference Bruno2016).

Beyond privacy and public interests, disclosures raise national security concerns. Judicial Watch filed FOIA requests with the DOD and Central Intelligence Agency (CIA) to obtain photographs or videos depicting Osama bin Laden during or after the 2011 operation that killed him. The CIA acknowledged it was holding fifty-two postmortem images but refused to disclose them, citing that they were classified top secret. Judicial Watch sued, commencing Judicial Watch v. United States Department of Defense (2013), and argued that the records were misclassified. The district court disagreed and determined that FOIA's Exemption 1, protecting documents whose disclosure could compromise national security, correctly applied since the images' detailed content and graphic nature could provoke anti-US violence. The DC Circuit affirmed the district court's decision.

These FOIA cases outline instances in which courts face concerns about disclosing photographs that go beyond their probative value or prejudicial effects on jurors, including questions about their unique capacity to invade privacy, enrich public knowledge, or threaten national security. As I describe in the next section, an ACLU lawsuit over the release of photographs places all these concerns into stark view. How do litigants substantiate and contest claims about what visual data do? And, how does courtroom visual theory overlap with or deviate from media scholarship?

To address these questions, this article draws on approximately seventy legal briefs, memoranda, and transcripts of oral hearings, mostly hosted on the ACLU website and collected online between February and October 2016. Congressional records, media reports, and official statements were also consulted. Materials were coded several times: first to identify general themes, and then to analyze how arguments diverged and were substantiated.

The complexity and length of ACLU v. DOD is remarkable (see Yagoda Reference Yagoda2010). I summarize the case below before analyzing its three central debates. For each issue, I present litigants' arguments and then juxtapose them against relevant media scholarship. While extending investigation into distinctions between academic approaches to visual media and their courtroom counterparts (Biber Reference Biber2007; Rolph Reference Rolph, Wagner and Sherwin2014), this organization is also meant to introduce legal scholars and courts to media studies perspectives on topics beyond photographic objectivity.

Phase 1: FOIA Request for Photographs

In late December 2002, various media outlets reported that detainees who had been captured and held by US forces after September 11 were being subjected to maltreatment, dying in custody, and being sent to countries known to use torture, a practice known as extra-rendition. In October 2003, the ACLU filed FOIA requests for expedited processing to numerous executive branch government agencies seeking documents related to the maltreatment, extra-rendition, and deaths of detainees held in US custody after September 11, 2001. Then, in April 2004, CBS's 60 Minutes II reported on a set of previously unpublished photographs depicting detainee torture at Abu Ghraib prison (see also Hersch Reference Hersch2004). Prompted by the leak and still having received no records under its previous FOIA requests, the ACLU sought immediate release of documents by filing a complaint with the Southern District of New York US District Court, commencing the lawsuit, American Civil Liberties Union v. United States Department of Defense.

The government reported that 144 photographs and four videos were responsive to the ACLU's request, but later modified the number of photos to eighty-seven. The government initially relied on two of FOIA's nine exemptions. Exemptions 6 and 7(C) exclude records in cases where disclosure would lead to the invasion of personal privacy.Footnote ⁴ The government argued that detainees would be subjected to humiliation and “public curiosity and insult” if the images were disclosed. These exemptions require agencies to conduct a balancing test weighing privacy concerns against disclosures' perceived advancement of the public interest. Since reports of its misconduct were already in circulation, the government argued that release would only minimally advance the public interest and not outweigh the privacy interests at stake.

Months later, the government added an additional exemption that became its dominant focus thereafter. Exemption 7(F), which does not involve a balancing test between private and public interests, protects “law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.”Footnote ⁵ The government claimed it added the exemption when high-level Defense and Army officials processing the images for redaction “expressed grave concern regarding the likelihood of violence occurring as a result of the release … even in redacted form.”Footnote ⁶ Though this argument implies that release would threaten national security, the government did not invoke Exemption 1, which protects documents from disclosure on the basis of national defense of foreign policy interests.Footnote ⁷ Under an order by former President Bush, Exemption 1 cannot be used to justify the withholding of documents if doing so would “conceal violations of law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency.”Footnote ⁸ Since the records requested would expose the government's violations of law and result in its embarrassment, Exemption 1 was not applicable.

On September 29, 2005, the district court ruled in the ACLU's favor and ordered the prompt release of the photographs with redactions (ACLU v. DOD I 2005). The district court rejected the government's invocation of the privacy and harms exemptions. Redaction, it ruled, would prevent the invasion of privacy of those depicted and, moreover, the public interests in this case significantly outweighed the privacy risks. Additionally, it rejected as overly broad the government's interpretation of the harms exemption as protecting unnamed, unknown, and innumerable individuals.

The government initially appealed the court's ruling but later withdrew after manyFootnote ⁹ of the responsive images were posted by Salon.com in March 2006, while the appeal was still pending. After the ACLU requested information about the remaining unpublished photographs, the government reported it was withholding an additional twenty-nine images sourced from more than seven different locations in Iraq and Afghanistan. In June 2006, after supervising redactions to eliminate the photographs' identifiability, the court concluded that twenty-one of the twenty-nine photographs were responsive and twice ordered their release.

In addition to informing the ACLU it had an additional twenty-three images, bringing the total count to forty-four, the DOD appealed the ruling. However, the Second Circuit Court of Appeals affirmed the lower court's ruling two years later (ACLU v. DOD 2008). The appellate court emphasized that the government's speculations of harm were too diffuse and that its attempts to apply the harms exemption for national security concerns would seriously undermine Exemption 1. After failing to obtain permission for an en banc hearing, the government finally informed the court on April 23, 2009 that it would release in late May 2009 the forty-four images along with a substantial number of others that required processing.

Phase 2: Congress and the President Act

The second stage of the case marks a swift reversal by the Obama administration and Congress to block the images' release. Weeks after committing to disclosure, the Obama administration appealed the case to the Supreme Court. On May 13, 2009, President Obama publicly expressed concerns that disclosure would endanger lives. According to congressional members citing a press report, Iraq Prime Minister Nouri al-Maliki had warned him that “Baghdad will burn” if the images were released.Footnote ¹⁰ As appeal was pending, and possibly due to doubts about the strength of its case at the Supreme Court level, the Obama administration pressed on with a legislative strategy.

Within a week of the president's remarks, Senators Joe Lieberman and Lindsay Graham introduced an act that ultimately blocked the photographs' release. In late October 2009, Congress passed the PNSDA as an amendment of the Department of Homeland Security Appropriations Act of 2010. The law, which amended FOIA, gives the Secretary of Defense powers to authorize the withholding of videos and photographs taken between September 11, 2001 and January 22, 2009 if such material “relates to the treatment of individuals engaged, captured, or detained” abroad by US Armed Forces after September 11, 2001 and whose disclosure would place US citizens, military personnel, and government employees at risk. Soon after its enactment, then Secretary of Defense Robert Gates signed the first, three-year certification authorizing all responsive images to be withheld. The Supreme Court then remanded the case to the appellate and district courts.

Phase 3: Post-PNSDA Litigation

The third and ongoing stage of the case centers on questions regarding how to apply the new legislation, including the court's role in national security cases, the procedures and coverage of certifications, and the adequacy of the Defense Secretary's determinations of harm.

The court's position has varied. In 2011, the court upheld the first certification signed by Gates. In the wake of al Maliki's intervention and the PNSDA's enactment, and in the context of ongoing war in Iraq, Judge Hellerstein refused to opine on whether there was battlefield danger, reasoning that Secretary Gates had a rational basis for the certification. Days before Gates's 2009 certification was to expire, new Defense Secretary Leon Panetta issued the second PNSDA certification in late 2012. Although Panetta's certification was virtually identical to Gates's, the court did not uphold it, stating that the government had failed adequately to substantiate its determinations of harm with factual evidence and to demonstrate it had conducted risk evaluations for each photograph, rather than the entire set.

The government appealed. As it was pending, Defense Secretary Carter issued a third certification days before Panetta's was to expire. During his review, Carter deemed 198 photographs appropriate for declassification, which were released in February 2016.Footnote ¹¹ The government moved the appellate court for a remand, which was granted. In late February, it submitted additional documents outlining its photo review procedures. The ACLU has maintained its stance that the government is still neglecting the PNSDA's language, FOIA's requirements, and the court's orders. This is where the case currently stands. Looking ahead, it seems unlikely that a Trump administration will reverse positions on the images' classification.

On Photographs' Evidentiary Status

My analysis begins with a well-trodden theme in both media and legal scholarship on photographs: their evidentiary status. As with other disputes (Mnookin Reference Mnookin1998; Rolph Reference Rolph, Wagner and Sherwin2014), parties in the ACLU case debated photographs' function and value as evidence. The government contends that disclosure is not warranted because photographs are more invasive than, yet informationally comparable to, other forms of data. As an initial point, it argues that “the photos aren't necessary to confirm or refute evidence of [g]overnment misconduct” since it has already admitted to abuse.Footnote ¹² Furthermore, the photographs would not “contribute any additional information” about the government's conduct that has not already been supplied in other publicly available accounts; therefore, the images would not significantly advance the “public's knowledge of these events.”Footnote ¹³

However, with only the Abu Ghraib images as references, the ACLU deems the evidence conveyed in the photographs so immense as to justify their release regardless of whether such disclosure invades the privacy of those depicted. Deploying “rhetoric of the real” (Feigenson and Spiesel Reference Feigenson and Spiesel2009, 35), the ACLU claims that photographs “provide the most accurate and best evidence” of the events that transpiredFootnote ¹⁴ —a sentiment the district court echoes: “the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate.”Footnote ¹⁵ The ACLU contends that written depictions “are simply no substitute for visual images”;Footnote ¹⁶ “even if the images have been described in other documents, the photographs may capture the expressions of the United States personnel, or convey the character of the abuse in a way that a written account never could.”Footnote ¹⁷ Although the government minimizes such details as trivial enough not to enhance the public's knowledge of events significantly, the ACLU asserts they speak volumes.

Furthermore, the ACLU reasons that the images' value is premised not only on their empirical richness, but also on their trustworthiness. It considers the images as less vulnerable to spin, capable of corroborating the government's own internal investigations and public admissions of misconduct.Footnote ¹⁸ Written accounts already in circulation, even including descriptions of the images, should not be trusted, and thus do not mitigate the public's need for the release.Footnote ¹⁹

Both parties veered from media scholarship's cautious assessments of visual evidence. Despite the literature's heterogeneity on this issue, studies tend to conclude that whatever “evidence” photographs are said to depict may have less to do with their actual content than with the cultural and discursive frames through which they are read and interpreted (Berger [Reference Berger and Trachtenberg1968] 1980; Smith Reference Smith2007). Litigants, though, cannot afford to acknowledge these contingencies, as doing so would minimize the images' significance. Vaunting photographic truth, the ACLU's account most starkly contrasts with this literature's evidentiary skepticism. At the same time, one would be hard pressed to find support for the government's equivalence between visual and textual forms of data. Despite challenges to photography's objectivity, it is a truism that the medium's realism accounts for both its social power and its danger. As a further counterpoint to this equivalence, entire academic sub-disciplines such as visual anthropology and visual sociology promote the use of visual data to capture dimensions of the social world that are “difficult otherwise to verbalize or articulate” (Sweetman Reference Sweetman2009, 507), and are consequently not accessible through written field notes and traditional research methods (see also Pink Reference Pink2012).

Curiously, the government does not argue that the public would have been misled by the photographs due to inadequate context, a variant of objectivity critiques. Nor does the district court raise this concern, instead echoing the ACLU in celebrating photographs' probative superiority, noted above. Finally, the ACLU does not raise the possibility that disclosure could advance public knowledge not solely by exposing the images' visible content, but by enabling citizens, media, and human rights groups to reconstruct a timeline of events through their metadata, as was done with the Abu Ghraib images (Morris Reference Morris2014). Amid a torrent of fake news and image manipulation, digital forensic investigators rely increasingly on EXIF files and timestamps to authenticate footage and to confirm allegations of human rights abuses.Footnote ²⁰

On Photographs' Privacy Implications

Privacy constitutes another central theme in the dispute. The government contends that since the images are intrinsically humiliating, their release would inevitably invade detainees' privacy and subject them to humiliation, retraumatization, and other harms, regardless of whether they are redacted. Detainees would suffer with the mere “knowledge that these photographs have been placed in the public domain.”Footnote ²¹ As these harms constitute inhumane and degrading treatment, the photographs' release would violate the Geneva Conventions.

Further, the government claims that the “public curiosity” generated by the images would exacerbate detainees' emotional harms. This curiosity is portrayed as being motivated by prurience, rather than by humane concern for detainees or an interest in governmental misconduct. Purporting to privilege the detainees' interests over those of a voyeuristic public, the government assures it will release less invasive records.

The ACLU regards the government's stated concern for detainees as suspect and self-serving, given its interests in withholding documentation of its misconduct and its responsibility for the detainment, torture, extra-rendition, and deaths of those individuals. Instead, the ACLU argues that the images would not likely invade subjects' privacy if they cannot be identified. Contending that legislative history and case law have linked privacy interests to identification, it rejects the government's view of privacy invasion as overly broad. To illustrate its point, the ACLU contests the government's interpretation of New York Times Co. v. NASA (1991), which concerned the release of an audiotape recording of the Challenger astronauts' last words. In that case, the ACLU emphasized, “the invasion of privacy occurred not because the families' peace of mind of [sic] would be disturbed, but rather by virtue of the actual invasion of their homes by mailings, solicitations, and telephone calls from the media.”Footnote ²² This framework gives significance to privacy violations insofar as they lead to external injuries, such as the risk of media or others visiting one's home, rather than internal ones, like reminders of past trauma.

Additionally, the ACLU contests the government's claim that the images would generate curiosity, asserting instead that they would direct public attention to government misconduct and compel sympathy toward detainees. Images “humanize victims in a way that text cannot” and, under particular circumstances, photographs may protect future victims and hold perpetrators to account.Footnote ²³ Even if emotional harms do occur, the significant public interests in these images warrant their release. Additionally, the ACLU fears that giving significant weight to emotional harms in this lawsuit would threaten the release of documents depicting governmental misconduct in future FOIA cases. If such records were to feature subjects in degraded positions, they would be exempted from release. Under this logic, the worse the misconduct, the more withholding is warranted.

Litigants' arguments regarding privacy are echoed in media scholarship. The ACLU's contention that degrading photographs nonetheless serve positive ends would find support (Halfmann and Young Reference Halfmann and Young2010; Bair Reference Bair2014; Speltz Reference Speltz2016). Yet, studies also reveal how images of atrocity have been instrumentalized for violent causes, including war and lynching (Smith Reference Smith2007; Möller Reference Möller2008), profited from financially, and subjected to the voyeuristic “public curiosity” forecast by the government, particularly when racial and ethnic minorities are depicted as they are here (Kleinman and Kleinman Reference Kleinman and Kleinman1996; Marriot Reference Marriot2000; Reinhardt Reference Reinhardt, Reinhardt, Edwards and Dugganne2007). Others have highlighted the manner in which the moment-to-moment documentation of an act on camera may itself magnify, ritualize, or otherwise shape the character of the violence depicted therein (Apel Reference Apel2005; Smith Reference Smith2007; Jakob Reference Jakob2016). Further, the literature has examined whether photographs' capacity to render beautifully or “aestheticize” pain enables a “parasitical” form of “pleasure” that can “threate[n] to neutralize such acts of violence” (Bal Reference Bal, Reinhardt, Edwards and Dugganne2007, 103). If indeed the images resemble those at Abu Ghraib as they are expected to, it would cast doubt on the ACLU's denial of release inviting voyeurism. Commentators emphasize that “the pornography of pain as shown in [those] images is fundamentally voyeuristic in nature” (Bourke Reference Bourke2004). The global, online circulation of the Abu Ghraib images is said to have compounded the “double perversity” that characterized their initial production and dissemination (Hariman and Lucaites Reference Hariman and Lucaites2007, 294).

As noted, voyeurism, humiliation, and the Internet's magnification of privacy invasion have all been addressed in previous disputes over images, both under FOIA and in privacy invasion cases concerning covert photography (Halstuk Reference Halstuk2005; Zeronda Reference Zeronda2010). However, because the images at stake depict human rights abuse, litigants foreground and extend debate over audiences' emotions as a determining criterion in whether images invade privacy. The images' content enables the ACLU to argue that their disclosure would compel sympathy rather than voyeurism, a claim less tenable by Favish (2004), requestors of booking photographs, or defendants in street photography cases. Reflected in the media scholarship above, this increased weight on images' reception rather than their content alone may also be responsive to the basic expectation, as highlighted by the Detroit Free Press II appellate court, that privacy considerations today must begin with the expectation that images are boundlessly and instantaneously circulated.

The images' documentation of human rights abuse also compels discussion of whether the privacy harms from disclosure could compound the very injuries captured on camera. Though the court agreed with the ACLU's claim that redaction would circumvent privacy harms, scholarship also supports the government's concern that the images would “trigger” former victims and viewers. Triggering appears in discussion on popular culture and is considered a legitimate though controversial concern in contexts spanning from higher education to criminal law (Bal Reference Bal, Reinhardt, Edwards and Dugganne2007; Bair Reference Bair2014; see also Vingiano Reference Vingiano2014). For instance, some courts find it necessary to offer posttrial stress and trauma resources to jurors who have served on cases involving gruesome evidence (Guthrie Ferguson Reference Guthrie Ferguson2015). After viewing the Abu Ghraib photographs, immigrant survivors of torture living in New York experienced flashbacks and became afraid for their safety (Bernstein Reference Bernstein2004).

On Photographs' Political Provocations

Litigation ultimately centered on speculations about what photographs do and to whom. The government anticipates that the images will inflame anti-US sentiments, fuel terrorists' propaganda efforts, destabilize the wider Middle East, and incite anti-US violence around the globe. In stark contrast, the ACLU speculates the images will elicit sympathy, critically inform citizens, and force the government to account. Whom litigants construct as viewing the photographs accords plausibility to their projections.

The government depicts photographs as strengthening the adversarial biases of viewers and provoking violent and irrational responses. It argues that Arab and Muslim publics in Iraq, Afghanistan, and the broader Middle EastFootnote ²⁴ will react emotionally and violently to the images, alluding abstractly to deep-seated cultural and religious taboos as well as preexisting anti-US sentiments. Though “objectively deplorable to people of any faith or culture,” the images' effects would be “reinforced … when viewed in the context of the Muslim faith—.”Footnote ²⁵ Similarly, the images “may touch on a number of deep-rooted Arab cultural values that will resonate with the Iraqi public.”Footnote ²⁶ No examples of such “cultural values” are given.

Consistent with representations long in circulation (Said Reference Said1978) yet refashioned and made explicit in the wake of September 11 (Razack Reference Razack2008), this narrative invokes stereotypes, casting these populations wholesale as latent terrorists: hyper-emotional, easy to offend, and prone to violence. Photographs are expected not to generate hostility so much as to activate anti-US sentiments these publics allegedly already possess. As “[m]any Arabs harbor long-standing perceived grievances against the West in general and the United States in particular,” writes a declarant, the release of these photographs “likely will only fuel this resentment.”Footnote ²⁷

Pointing to instances of anti-West and anti-US rioting, the government portrays Arab and Muslim publics as either actively or potentially hostile to the United States, and the images as sufficient to determine this difference.Footnote ²⁸ One declarant asserts that “[t]he Iraqi public, if inflamed with emotion, may be easily manipulated by competitors seeking to exploit this opportunity to their full advantage.”Footnote ²⁹ It is stressed, however, that “release of incendiary material such as this can inspire members of the public to undertake acts of violence,” with or without provocation by terrorists and insurgents.Footnote ³⁰ Unsurprisingly, the latter groups are depicted as cunning and sophisticated in their deployment of media and are anticipated to “seize upon these images and videos as grist for their propaganda mill.”Footnote ³¹ The depiction of Arab and Muslim audiences as hyper-emotional, volatile, devoid of rationality, and vulnerable to terrorists' machinations further imbues the images with menacing peril.

The ACLU's account of photographs' social impacts could not be more disparate. The ACLU celebrates images as educating viewers and prompting them to become emboldened human rights defenders. While the government portrays its audience pejoratively, the ACLU idealizes its imagined viewership, US citizens, as sympathetic, well-informed, and politically engaged.Footnote ³² “It is highly unlikely,” writes one declarant, that viewers will respond “with disdain or contempt toward the prisoners depicted.”Footnote ³³ Audiences are instead anticipated to respond with concern for detainees' plight.Footnote ³⁴

Furthermore, the ACLU depicts the images as educating and fueling nationwide discussion.Footnote ³⁵ Contrary to the government's assertions that images provoke emotions at the expense of reasoning, ACLU amici stress their invaluable probative worth as crucial in “proving to a skeptical world that human rights have been abused”Footnote ³⁶ and in spurring citizens to “evaluate the choices their leaders have made and hold them accountable.”Footnote ³⁷

To substantiate their starkly opposed speculations, litigants rely on experts and evidence that are tightly tailored to their respective audiences and impacts. The ACLU's declarants and amici consist predominantly of press associations and human rights organizations—groups that are financially and ideologically invested in the very portrayals they help to construct, that is, a public willing to “support efforts to deter [human rights abuse] and, when it occurs, to hold abusers accountable for their actions.”Footnote ³⁸ Conversely, the government draws on high-level military officers with connections to operations and intelligence gathering activities in the Iraq and Afghanistan wars to depict the photographs as a national security threat. These declarants provide detailed accounts of tenuous military operations and political circumstances taking place in the Middle East to underscore volatility of the region.Footnote ³⁹ Large swaths of text are redacted in these accounts, whether due to genuine safety concerns or to bolster the sense of danger at hand.Footnote ⁴⁰

Each party marshals selective evidence to depict photographs as sparking human rights abuses or advances. The government enumerates a series of riots and violent attacks it attributes to the publication of photographs of detainees in British custody, a Newsweek article reporting on false allegations of Koran desecration at Guantanamo Bay, Cuba, and cartoons of the Prophet Muhammed.Footnote ⁴¹ Predictably, ACLU amici extol photography's heroic role in civil rights, the prohibition of cluster munitions and landmines, and the development of international treaties like the Geneva Conventions.Footnote ⁴² Presumably to demonstrate photographs' power to document history, bear witness to suffering, and prompt social change, one appendix submitted by ACLU amici was comprised solely of iconic images, including those taken of the liberation of a World War II concentration camp, the My Lai Massacre, and the World Trade Center towers engulfed in flames.

Litigants' strategic and partially historical interpretations are illustrated by their disparate reconstructions of Abu Ghraib's legacy. The government lambastes the leak as having destabilized the region, incited violence, and fueled anti-US sentiment,Footnote ⁴³ while the ACLU declares it a watershed moment for democracy. In its account, “that one leak directly triggered military prosecutions and policy changes.”Footnote ⁴⁴ Naturally, the ACLU neglects to mention George W. Bush's subsequent reelection and the leak's failure to secure the prosecution of senior officials.

Despite litigants' confidence, whether photographs help or hinder mobilization remains unclear in scholarship despite extensive investigation into the medium's role in environmental (DeLuca Reference DeLuca1999; Schwarz Reference Schwarz2013), civil rights (Speltz Reference Speltz2016), and pro-life movements (Halfmann and Young Reference Halfmann and Young2010; McLaren Reference McLaren2013). One pivotal, unresolved question concerns whether photographs shift or merely intensify viewers' ideological positions. Photographs may generate “moral shocks,” which can prompt viewers to become active in social movements (Jasper and Poulson Reference Jasper and Poulson1995), or they may strengthen new or committed activists' beliefs (see Halfmann and Young Reference Halfmann and Young2010).

And yet, the opposite may occur. Grotesque images can generate confusion and ambiguity and provoke viewers to look away or disapprove of activists who deploy them (Halfmann and Young Reference Halfmann and Young2010). Some commentators stress that particular ideological preconditions are requisites for photographs to produce social change (Sontag Reference Sontag1977; Perlmutter Reference Perlmutter1998). For instance, though photographs are understood as having shifted public opinion against the Vietnam War, Möller (Reference Möller2008, 104) questions whether the images changed or merely deepened viewers' policy positions, as antiwar sentiment already existed in much of the population. Some have theorized photographs as inhibiting mobilization by desensitizing viewers to violence or leading to a sense of political impotence (Sontag Reference Sontag1977; Möller Reference Möller2008).Footnote ⁴⁵ Meanwhile, others have complicated or challenged popular claims of widespread “compassion fatigue” by revealing how viewers' emotional responses are multiple and may entail more a feeling of being overwhelmed than indifference (Cohen and Seu Reference Cohen, Seu, Bradley and Petro2002; see Campbell Reference Campbell2012 for a contextualization and critique of compassion fatigue). Further, the degree to which images of suffering elicit compassion may vary with myriad factors, including the facial expressions (Kogut and Ritov Reference Kogut and Ritov2005) and number (Small and Verrochi Reference Small and Verrochi2009) of individuals depicted, viewers' notions of deservingness of compassion (Kinnick, Krugman, and Cameron Reference Kinnick, Krugman and Cameron1996), and the degree of exposure to images of the same event (Hoijer Reference Hoijer2004).

In sum, the literature approaches the question of photographs' social impacts cautiously, acknowledging even the same image can

Whatever its maker's intention, a photograph's meanings “will have its own career, blown by the whims and loyalties of the diverse communities that have use for it” (Sontag Reference Sontag2003, 39). Of this, the Abu Ghraib photographs may be exemplary: the images—whether taken by soldiers as war trophy photographs or as documentation of military misconduct and CIA murder kept secret—were ultimately used to prosecute low-ranking personnel while allowing senior officials and agencies to walk free (Morris Reference Morris2014).

The complex and at times contradictory nature of images' effects suggests that predicting the consequences of disclosing particular photographs with any certainty may be tenuous, if not impossible (Kilby Reference Kilby2013). However, compelled by the adversarial system's imperatives, the parties—and especially the judge—must make this prediction. Consequently, litigants construct claims underpinned by essential assumptions and elisions. At one extreme, the government's anxieties about Muslims' and Arabs' reactions denies these audiences the capacity to approach the images with open minds, be informed rather than inflamed, respond constructively or nonviolently, or simply not respond at all. By contrast, the ACLU casts the images' effects as primarily cognitive, identifying sympathy but no other emotions as possible products, even as anger and moral outrage have been found to sustain movements of the kind the ACLU aims to foster (see Jasper Reference Jasper2011).

Furthermore, though photographs may encourage viewers to become more politically informed and vigilant (Hariman and Lucaites Reference Hariman and Lucaites2007, 293), history proves that they need not generate oppositional responses. Civil War photographs, anticipated to decrease support for the war, instead helped portray it as morally just (Möller Reference Möller2008). Rather than motivating government accountability, Rush Limbaugh mused that the Abu Ghraib photographs amounted to nothing more harmful than college hazing pranks, of which the US personnel were deserving for their service (Sontag Reference Sontag2004). Indeed, the capturing of a scene on camera may play a central role in the unfolding and violence of a painful or humiliating act, as was the case with lynching images, war trophy photographs, and torture and abuse at Abu Ghraib (Apel Reference Apel2005; Smith Reference Smith2007; Jakob Reference Jakob2016). Similarly, the images here could be interpreted or deployed in ways that further consolidate support for torture. Zelizer laments that genocides have not been prevented simply by their being captured on camera. And yet, humanity's faith in photographs appears somehow to be more agile than the memory of its failures; despite countless examples of the latter, “the presumed connection between public action and photographs persists nonetheless” (2010, 20).