Chief Judge Kozinksi finds a substantive due process right to “Control Public Dissemination of a Family Member’s Death Images” based on the viral nature of the internet, and how images are propagated.
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.”2 Marsh’s fear is not unrea-sonable 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.3 . . .
Marsh has a constitutionally protected right to privacy over
her child’s death images.