I was away from my desk for a few days, which resulted in quite a few things piling up, metaphorically speaking, in my mind. As silly as I feel talking about yet another photo scandal, being away, which involved a lot of walking and of traveling, reminded me that often enough, when dealing with a photo scandal we’re losing track of what is at stake - and what is not. I suppose it’s the medium that dictates the message - the internet, with its incessant flood of relevant and mostly irrelevant little snippets of stuff, bombarding us day in, day out (this website, despite the fact that it’s not being updated more than once or possibly twice a day of course being part of the problem). (more; updated below)

So let’s see. Last week, Maria Gunnoe, an anti-coal activist went to the nation’s capital to, as reported by Mother Jones magazine, testify “before the House Committee on Natural Resources in a hearing on the Obama administration’s contentious relationship with the coal mining industry. She had prepared a slideshow presentation that included a photograph by the photojournalist Katie Falkenberg depicting a nude young girl sitting in a bathtub filled with murky brown water. The photo was meant as a salient statement to legislators on the impact of coal mining on society’s most vulnerable. ‘We are forced to bathe our children in polluted water,’ she said. ‘Or not bathe them.’”

You gotta take that in. In this country there are children who have to take baths in murky brown, polluted, bathwater. This sounds as if it was straight out of one of those post-Soviet countries. But no, it’s right here, right in our midst. Now keep that in mind, because very quickly, things turned into a different, not entirely unpredictable direction.

After her testimony, reports Mother Jones, Gunnoe “was escorted into an empty side room by Capitol Police Special Agent Randall Hayden and questioned for nearly an hour about the photo, which she had gotten the approval of the photographer, the child’s parents, and Democratic committee members to use. Gunnoe said Hayden, whom she described as kind and professional, told her the committee believed the photo to be suggestive of child pornography, and that he would be following up on the possibility of her being involved in such illegal activity.” If you’re curious about Gunnoe’s reactions and thoughts, find an interview with her on this Rolling Stone magazine page.

In a sense, this is not a new story. Ask photographers Sally Mann or Tierney Gearon. But here, of course, the whole affair has a whole different dimension to it, because we’re talking about Congressional testimony here. It’s politics. It’s politics trying to deal with, lest we forget this, the fact that there are children in this country who have to take a bath in brown, polluted, water.

On his Tumblr, Wayne Bremser wrote a post about it (which, I believe, is where I heard about it first - it was either there or the Mother Jones Tumblr; Newsweek’s Tumblr later picked it up). So there it was, for all to see, the photograph of a little girl, sitting in a tub filling up with what looks like frothy tea. It was. A little later, Bremser posted the following update: “Katie Falkenberg emailed me and requested that the photograph be removed. I am republishing this post in an effort to have the Tumblr blogs that have re-blogged it to remove it also. Her request is: ‘This photo is copyrighted and I have not, nor am giving anyone permission to publish or post this photograph - especially out of respect and consideration for the family and what is being discussed about it at this time.’” He removed the photograph.

I don’t necessarily believe in black-and-white debates, so the following thoughts have been going through my head since (I have also debated the issue quite vigorously in a non-public forum with Wayne Bremser, Bryan Formhals, Blake Andrews, James Luckett, and others). First of all, this is the topic: In this country, little children have to take a bath in brown, polluted, water. Second, there is the topic of copyright. About 50% of all internet photography debates seem centered on copyright now, but this case is pretty much clear cut: Posting the photography and talking about the issue constitutes a very clear and obvious case of fair use (see this page). This has nothing to do with appropriation, it’s a very obvious case of news reporting (and now that the issue of child pornography has come up, it’s also an issue of criticism). Third, the photographer asked for the photograph to be taken down, and in such cases I tend to come down on the photographer’s side. Fourth, there is the issue of “respect and consideration for the family.”

You don’t have to be a rocket scientist to realize that you cannot satisfy each and every one of these four points at the same time. So you have to come to a conclusion how to deal with it. This is not the first debate in the photo community about a topic where conflicting issues need to be weighed. But at the end, you have to make a decision, and that is going to be either black or white here.

I personally think that it is in the public’s interest to be able to see the photograph and to come to a conclusion about the underlying topic: Why do children in this country - not in some post-Soviet country thousands of miles away, but right here, in our midst - have to bathe in brown, polluted, water? Why is their health being put at risk so that the coal-mining industry can make a profit?

Now, you could bring up the aspect of “respect and consideration for the family.” But I gotta tell you this: If you’re a photographer, then maybe you want to think about the “respect and consideration for the family” before you create such photographs and before you then include them in a slide show for a Congressional testimony. If you’re the family, then maybe you want to think about letting a photographer into your home first. It’s not that I don’t understand these concerns, but bringing it up now is like trying to squeeze the toothpaste back into the tube - while the Congressional majority would like nothing better than preventing the public from seeing what this is all about.

This isn’t even about whether you are for or against that kind of coal mining. It’s a simple issue of the public having access to information, of being able to see what some of the effects of the type of coal mining in question are. In a democracy, information must not be suppressed, regardless of whether you agree with it or not. And there are cases where the concern about the public’s right to be educated trumps photographic discussions.

It’s just a coincidence that at around the right time this particular discussion unfolded we witnessed the 40th anniversary of Nick Ut’s famous photograph of Kim Phuc. Maybe Ut’s photograph can help us decide how to deal with our contemporary brown, polluted, waters.

Update (12 June 2012): Make sure to read Michael Shaw’s take