The newspaper will argue in its notice of appeal that the Florida Legislature violated due process by creating a retroactive exemption to the state's open records law for autopsy photos.

In addition, the newspaper will contend the exemption is too broad and the trial judge erred by granting a temporary injunction prohibiting the autopsy photos from being made public, said Tom Julin, a lawyer for the newspaper.

''What we're saying is ... you should hold the exemption unconstitutional and then you shall ask that the lawsuit be dismissed because it doesn't comply with the old law,'' Julin said.

Florida lawmakers passed a law following Earnhardt's death that prohibits all autopsy photos from being made public unless a judge has ruled they can be unsealed. Earnhardt died Feb. 18 on the last lap of the Daytona 500.

Judge Joseph Will ruled in June that the law was constitutional and The Alligator and Deland-based Websitecity.com couldn't have access to the autopsy photos, ending a four-month effort by media organizations to obtain the images.

Earnhardt's widow, Teresa, filed the lawsuit seeking to block the release of her husband's autopsy photos four days after her husband's death.

The Orlando Sentinel, which had been investigating NASCAR safety, then challenged the injunction, saying it wanted to review the photos for its investigation.

Teresa Earnhardt and the Sentinel reached a settlement that allowed an independent medical expert to view the photos, issue a report and the photos would be permanently sealed.

The Alligator then challenged the temporary injunction.