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The sun had just set behind the mountains in Dahaneh, a small town in
Afghanistan. A young Marine lay wounded on the dusty ground, surrounded
by his comrades and bits of his own bloody legs.

"Bernard, you're doing fine, you're doing fine." A fellow soldier said, trying to comfort him. "You're gonna make it. Stay with me Bernard!"

But Lance Cpl. Joshua M. Bernard had been mortally wounded by a
rocket-propelled grenade and Associated Press photographer Julie
Jacobson, just yards away, was there to capture his last moments of
consciousness.

"I kept trying to gauge whether or not to drop the camera and help the
Marines with the injured man," said Jacobson in a published journal entry about the days surrounding the young Marine's death, "but saw that there were two guys with him and decided I was not needed."

As a journalist embedded with the U.S. Military, Jacobson had signed a
contract that limited what and how she reported events. One rule
stipulated that she could photograph casualties, but only from a
"respectable" distance and in such a way that the person could not be
identified.

Even while shooting the scene, Jacobson knew the images could not be
published according to embed rules. But after much deliberation, she
forwarded the photos to the New York AP office. The AP released the photo on the wire. (To view the photos Jacobson shot that day, click through the slideshow at Aol News.)

"To ignore a moment like that simply because of a phrase in section 8,
paragraph 1 of some 10-page form would have been wrong," said Jacobson,
defending her decision as a journalist. "Death is a part of life and
most certainly a part of war. Isn't that why we're here? To document
for now and for history the events of this war?"

In response to the rule-breaking photograph, military officials changed
the original stipulation to read: "Media will not be allowed to
photograph or record video of U.S. personnel killed in action." Period.

The new rule, not even allowing such images to be captured, even if
they are never used, outraged many in the media. "It's punishment for
war photographers," said Lucy Dalglish, executive director of the
Reporters Committee for Freedom of the Press in an email to FreeRepublic.com;
"They're saying if you want access, you have to play by our rules. And
our rules are this - the public will NOT see dead U.S. Soldiers."

Master Sgt. Thomas Clementson, a spokesperson for Regional Command East
in Afghanistan, defended the rule in an interview with News
Photographer magazine. "Media have multiple ways to cover the war in
Afghanistan and embedding is only one of the choices available. The
press retains the option to report independently or as a media embed
with military forces."

But the choice is not so cut-and-dried. Embedding with the military
affords the media protection and access that could not otherwise be
matched.

"Sometimes it's difficult just to get in and out of the country," said
Douglas Dodd, an attorney specializing in media and communications law.

Dodd won an important First Amendment case for Harper's Magazine in 2006.
The father of a young soldier who had died in Iraq sued photojournalist
Peter Turnley and Harper's Magazine for
publishing a photo of the deceased at his open-casket funeral. The
photo was one of 20 in a photo essay depicting war casualties.

Dodd said his client Turnley had a tough time gaining access to war zones in Iraq while not embedded.

"He had to get through checkpoints and roadblocks as someone who was
certainly a member of the press, but who had no government authority or
ID."

Clementson acknowledged the "unique and intimate access to service
members in a combat zone" that journalists are privy to while embedded,
and he cited it as the reason media coverage should be limited.

"There are cases," said Clementson, "when protecting the privacy of our
service members and propriety take precedence over media access."

The publication of the photograph and subsequent revision to the embed rule raises an important question:

    Does a dead or dying soldier have a right to privacy? Does his family?

The law does not favor the dead or their families in privacy suits. In
Dodd's case, Harper Magazine v. Oklahoma, the father of the young
soldier claimed invasion of privacy, false representation, and
intentional infliction of emotional distress. But Judge Frank H. Seay
dismissed the case, ruling that the First Amendment protected Turnley because his photo
depicted a public, newsworthy event that trumped the family's privacy
interests during the funeral.

If a party would like to try fighting a privacy claim anyway, the offended party must prove all four of the following:

1.    The information (in this case a photograph) was published;
2.    The information was either false or legitimately private, unknown facts;
3.    The information is highly offensive to a reasonable person; and
4.    The information is not of legitimate public interest.

The first is often easiest to prove. Magazines and newspapers across
the country chose to run the photographs of Bernard when they became
available. The photo was published many times over.

The second is harder to prove. The photo was a truthful depiction of
the events that occurred that day, and by the time the photo was
released by AP to news outlets, Bernard had been dead for weeks and
news of his death had reached his family and relatives.

In the case of the open-casket photo, privacy was hard to claim because
the family had invited the press to the funeral, even providing a
special section for them to sit.

"In fact," said Judge Seay, "plaintiffs appear to have put the death of
their loved one in the public eye intentionally to draw attention to
his death and burial."

The controversy over the publication of Jacobson's photograph is most
closely linked with number three. Was the photo highly offensive to a
reasonable person? Newspapers that chose to run the photo likely did
not find the image offensive as much as telling of the costs of war.
But just as many papers chose not to publish the photo.

Finally, historical argument would place the photo of Bernard as a
legitimate public interest. Photojournalists have been capturing images
of soldier deaths since Mathew Brady began documenting the bloody
battles of the U.S. Civil War.

"People forget that these types of photographs have always been
around," said Dodd. "There were horrific photographs of World War II
from Korea, and perhaps we're seeing them more because of the way
communications have developed."

Aside from historical context, photographs of war casualties have kept people from becoming complacent.

"It is necessary and good to recognize those who die in times of war,"
said Jacobson. "An image personalizes that death and makes people see
what it really means to have young men die in combat."

On Oct. 15, the military embed rule was reverted back to its
original at the urging of officials at the Pentagon. The rule, as
before, allows only the use of material where there is not a
recognizable face or identifiable feature, and where the media asked
prior permission of the soldiers and their families.

"Honestly, I didn't think [Jacobson's photo] was an inappropriate
photo, any way you look at it," said Dodd. "It was truthful. It was not
horrific - it  was not so gory that it would offend the sensibilities
of most viewers. I guess you want to be sensitive to the family members
but, when you're talking about showing images of absolutely newsworthy
events, that really takes a second chair."