Press law’s (very) Frequently Asked Questions

By Mike Hiestand

Calling these Frequently Asked Questions doesn’t really do them justice. These are the current Eveready Energizer Bunny questions for student media. They are asked, and asked, and asked.

Q. We’re reviewing a new movie (or a new CD, video game, TV show, book, etc.). Can we use an image from the Internet as an illustration?

A. Yes, but you have to be selective. As a general rule, most of material that you find online — whether it’s a photo, a story, music, etc. — is protected by copyright. If you want to use it, you’ll first need to obtain permission from the copyright owner (which may or may not be the operator of the website where you find the material).

There is, however, one important exception called Fair Use. The Fair Use Exception allows student journalists to use limited portions of otherwise copyrighted material without permission when engaged in news reporting or when publishing commentary or reviews.

To qualify, the copyrighted material that you use must be very closely tied to a news story or survey, commentary or review. For example, in reviewing the latest Julia Robert’s movie, the Fair Use Exception would allow you to use a single framed scene from the movie or a scaled down image of the movie’s promotional material (for example, the movie poster) taken from the movie’s official website to illustrate your review. (The same thing would allow you to scan a small image of a CD cover to illustrate your review of that CD.) Likewise, when Charles Schulz died, newspapers across the country lawfully used a small image of Charlie Brown or some other famous Peanuts character to illustrate their news story about his death. In such cases, there is a sufficiently close connection between the movie review or the news story and the copyrighted material. Without the review or the news story, however, you could not simply paste a downloaded photo of Julia or Snoopy into your publication because you had empty space to fill.

Fair Use would also not apply if you were to use a candid photo of Julia Roberts from People Magazine or some other third party’s website that is unconnected to the movie you’re reviewing. The candid photo of Julia Roberts taken by a People Magazine photographer really has nothing to do with the movie and would likely not qualify as a Fair Use. If you want to use it, you’d need to obtain People Magazine’s permission.

Similarly, if you wanted to publish a photo of a current news event, such as a terrorist bombing, you could not just go to the online edition of The New York Times and download one of their copyrighted photos to illustrate your article. The photo depicts the news, but it is not the news itself and you can’t make a Fair Use claim. If, however, you were you doing a story on how the news media covers terrorism, you could probably make a Fair Use claim for publishing a scaled down version of the entire front page of The New York Times , including the photo, to show how the newspaper placed the story. In such a case, the photo itself would be part of the news.

Q. Can I use copyrighted material (online or otherwise) if I properly credit the source?

A. Simply giving credit (for example, “Photo courtesy of People.com “) usually isn’t enough. Unless you can make a Fair Use argument, as discussed above, or unless you’re certain that material is not protected by copyright (for example, works created by the federal government and older works whose copyright have expired are not protected) you must obtain permission — preferably in writing — from the copyright owner before using the material. Of course, once you obtain permission, good journalism also demands that you accurately credit the source.

Q. We want to use soap opera titles, such as “Days of our Lives,” to head our yearbook sections. Any problems?

A. This question has many popular variants. For example, can we use book titles (Dr. Seuss’s “Oh, the Places You’ll Go” is a perennial favorite) as our yearbook theme? Can we use movie titles (for example, “The Sound of Music” to head the band section)? Can we use names of popular songs? Can we use advertising slogans as section headers (Nike’s “Just Do It” must have been in every yearbook in the country a few years back)? The answer to all of these questions is “yes” — as long as you do it right.

The U.S. Copyright Office has determined that certain categories of material cannot be copyrighted because they lack the necessary creativity. Among them: names, titles, short phrases, expressions or catchwords, slogans and mottoes. NBC, for example, cannot copyright the bare, unadorned words, “days of our lives,” and you are free to use them as a section header, a yearbook title or anyplace else without obtaining NBC’s permission. However, NBC does own the rights to the daytime soap opera, “Days of Our Lives,” and if you want to use other material from the show, such as photos of cast members, scripts, or the show’s hourglass logo, that material is copyrighted and (unless you can make a Fair Use claim, as discussed above) you’ll need to obtain permission from NBC.

For more information on these and other copyright law issues, see the SPLC’s “Student Media Guide to Copyright Law,” available on the SPLC website at: www.splc.org.

Minors: Old enough to know what’s at stake?

By Mike Hiestand

Channel surf any weekday morning and you are almost sure to find a TV talk show or two where people are revealing highly personal, intimate – sometimes poignant, sometimes humiliating – details about themselves. When adults do this, most would agree that they have voluntarily agreed to divulge their secrets in front of 2 million viewers and they have no one to blame but themselves if they later regret their decision. But what about when minors share details of their private lives? Is there any difference? Can minors (typically a person under the age of 18) validly consent – without a parent – to the publication or broadcast of information about themselves that either could invade their privacy or libel their reputation?

For student media the question is an important – and common – one. A story on teenage pregnancy or depression, where a high school student agrees to share her otherwise private experience with the student newspaper, would be a common example.

The American Law Institute (ALI) has noted in its Restatement, a widely accepted legal authority, that consent should be effective as long as the person giving the consent has the legal capacity to do so. In a comment to Section 892A of the Restatement (Second) of Torts, the ALI says that a child’s consent is and should be effective if he is “capable of appreciating the nature, extent and probable consequences of the conduct [to which he consents],” even if parental consent is not obtained or expressly refused.

A growing number of courts have followed the reasoning of the Restatement. For example, a federal appeals court rejected a 16-year-old’s complaint that a TV talk show invaded her privacy when the minor’s stepmother – after the minor verbally attacked her during the show – responded by reading aloud her stepdaughter’s police record. The court found that the minor was sufficiently capable of realizing that she would be opening the door to the discussion of her personal life by appearing on a national television talk show.

The court concluded: “We need not decide at what age a child is sufficiently mature to waive her right of privacy, but 16 is old enough when no circumstances of deception or overreaching or limited competence are shown.”

Courts also have found that where a story is “newsworthy,” a minor’s privacy rights are equal to those of adults and it is not necessary for a publication to gain the consent of minors or their parents merely to report the story. One California court, however, recognized some limits of the newsworthiness defense and found that when reporters dealt with children, particularly those under the age of 12, reporters must think about the probable consequences of their conduct and operate within the bounds of basic decency.

There are exceptionally strong policy and legal arguments in favor of recognizing a minor’s consent as valid in the right circumstances. First, such reasoning is consistent with that adopted by courts in dealing with minors in other contexts, such as determining whether a child is responsible for injuries he causes. Second, this position takes into account the importance of recognizing the First Amendment right of minors to have their voices heard.

For example, without legal recognition of a minor’s right to consent, a 17-year-old gay student wanting to relate his experience in the hopes of helping other students cope with some of the challenges he faced would likely find few media outlets willing to touch his story for fear of being subsequently sued by his parents or the student himself should he later regret his decision to go public.

The Restatement view strikes a sensible middle ground. It recognizes a person’s age as simply one factor, among others, to be considered in determining if consent is valid. As long as a person understands what it is that he or she is consenting to and realizes the consequences of allowing such information to be published, the consent should hold up. Where a person – irrespective of age – is too immature or is otherwise unable to appreciate the significance of giving consent, the consent is invalid.

Under this view, the Student Press Law Center believes most high school students can provide valid consent. Most elementary-aged children, because of their immaturity, probably cannot.

When obtaining consent from a minor, student media should go out of their way to make sure the minor understands who you are (a reporter), what you’re doing (writing a story for publication in the student newspaper) and what he or she is agreeing to (for example, she will be a named source whose information, quotes and photo will be used to illustrate the experience of gay students). Remind your source that your publication is read not only by other students, but by parents, faculty, neighbors, potential employers and even other larger media, which could pick up on the story. When the information is especially “sensitive,” you should convey to him some of the possible consequences – both immediate and future – of publishing his information. Remind him that he is under no obligation to give you the information you are requesting. It’s also good practice to suggest that he talk with a parent or some other adult before proceeding. Obtaining parental consent (if one is willing to provide it), while it may not be necessary, never hurts.

Finally, the Student Press Law Center suggests that you obtain the consent in writing. A verbal waiver is valid, but can be harder to prove. The written consent should note how the minor’s information was collected and how and where it will be used. It should also state that the information is provided voluntarily, that the student media staff and minor thoroughly discussed the implications of providing consent, that the minor understands he is free to consult his parents or guardians and that he understands what he is doing when he signs the consent statement.

While the law in this area is still developing, student media that follow such precautions should be able to rest easy.

Wooster decision clarifies censorship guidelines

By Mike Hiestand

You can’t always tell who wins from the score.

The high school press recently won a major legal victory – but only if you knew what to look for.

Late last year, officials at Wooster High School in Wooster, Ohio, confiscated the entire press run of the student newspaper, the Blade, after the paper ran a story that raised questions about the enforcement of the school district’s alcohol policy. School officials claimed that the story was “potentially defamatory.” According to courtroom testimony, the story quoted two students by name. One of them was the school board president’s daughter who, according to the Blade story, admitted to drinking at an off-campus party. The story also quoted her as saying that she received school punishment. However, school officials say the girl never admitted to wrongdoing and was never punished. The student journalists maintain that the Blade reporter quoted the student accurately, though they acknowledge that the girl was not punished.

The students, with the help of their attorney, Ken Myers, filed a lawsuit against the school. That case is scheduled to go to a full trial later this year. They also asked the court to issue a preliminary ruling prohibiting school officials from confiscating future issues in similar situations. Partly because the legal standard for issuing preliminary court orders is so high, the court denied their request in February.

So – on its face – the Blade lost Round One. But, man, did they ever win big for the rest of us.

Before ruling against the Blade, Judge James Gwin said that he first had to look to the policies and practices that governed the newspaper to determine whether it was a public or nonpublic forum. This was important, he noted, because nonpublic forum student newspapers could be censored under the very broad “Hazelwood standard,” named after the 1988 Supreme Court case that significantly reduced the First Amendment protections available to most high school student journalists. However, public forum (or limited public forum) newspapers, the judge said, could be censored only when school officials provided much more compelling reasons to justify their actions.

The judge identified nine factors that courts should look to in analyzing the forum status of student media. They were: (1) whether the student media is part of the high school curriculum; (2) whether student staff receive grades; (3) whether the program is supervised by a faculty member; (4) whether the school deviated from its policy of producing the paper as part of its educational curriculum; (5) the degree of control the administration and faculty adviser exercised; (6) the applicable written policy statements of the school board; (7) the school’s policy with respect to the forum; (8) the school’s practice with respect to the forum and (9) the nature of the student media at issue and its compatibility with expressive activity.

Applying these to the Blade, the judge found it to be a limited public forum newspaper.

The legal analysis used by Judge Gwin is essentially the same one that the Student Press Law Center – since Hazelwood – has argued should be used by courts to determine when censorship of high school publications is legal and when it is not. But unfortunately, our saying it didn’t necessarily make it so. Only a handful of post-Hazelwood high school censorship cases have gone to court and none took the opportunity to plainly annunciate the legal test to be used in determining the forum status of a publication. Until now.

In Hazelwood, the Supreme Court clearly recognized the two different categories of student media, but it gave little guidance to judges about how they should distinguish between forum and nonpublic forum publications. Largely because of the ambiguity, many school officials have simply ignored the distinction and read Hazelwood as conferring an unlimited license to censor whatever they wanted. The Blade decision should help put the brakes on that.

The decision makes clear that school officials had better know the forum status of student media before they decide to censor it. Where a student publication is a public or limited public forum, censorship will be allowed in only a few, fairly rare situations. The judge in this case, for example, found that school officials reasonably believed that the Blade article was defamatory. At least for purposes of a preliminary ruling, he said, that was enough. But most high school censorship cases don’t involve defamatory material – they involve content that school officials simply don’t like. That sort of weak excuse won’t fly under the analysis adopted by this court.

In order to censor public or limited public forum student media, school officials must meet the higher Tinker standard (named after the 1969 Supreme Court case on which it is based). Unlike Hazelwood, Tinker provides significant First Amendment protection to student speech. Under Tinker, school officials must show, at a minimum, that the publication they propose to censor contains material that they reasonably believe is unlawful or likely to cause a serious, physical disruption inside the school. I estimate that might be a legitimate excuse in less than two percent of the censorship incidents students report to us. Those are numbers with which America’s student media can probably live.

Loss, shmoss! If only all “defeats” were so wonderful. Thank you, Wooster Blade.

The full text of the decision in Draudt v. Wooster City School District Board of Education, Case No. 5:03-CV-62 (N.D. Ohio February 14, 2003), is available on the SPLC website.

Fair report privilege: A valuable, pitfall-laden defense

By Mike Hiestand

Following their annual intrastate rivalry, quarterbacks from the two football teams got into a bar fight and were arrested. Student newspapers from both schools covered the story. Both published articles reporting that the fight started after one of the players insulted the other’s girlfriend, who was pregnant. A month later, both papers received phone calls from the girlfriend’s attorney. She is not pregnant, the attorney tells them, and their stories reporting that she is unmarried and sexually promiscuous have humiliated her and caused irreparable harm to her reputation. Get ready to be sued.

In fact, only one of these papers has a potentially serious problem.

Paper A’s reporter was close to the scene when the trouble started and talked to multiple witnesses to the fight. She also spoke to the bartender, other players on the team, both team’s coaches and the player who allegedly insulted the girlfriend. Finally, she talked to a police officer outside the bar who gave her an informal rundown of what had happened.

Paper B’s reporter talked to no one. He didn’t hear about the fight until two days later, and, as a result, reported his story only from information in the sworn criminal complaints he was able to obtain. He did not attempt to interview anyone else.

So who should be more worried?

Unfortunately, despite their reporter’s efforts, Paper A may still be on the hook.

Paper B, whose reporter obtained and attributed his information to sworn criminal complaints, can likely invoke the fair report privilege in his state. The fair report privilege (also sometimes called the public proceedings or public records privilege) protects the news media from being successfully sued for libel when they publish fair and accurate accounts of information contained in official documents or statements made during official proceedings. The privilege is important because it protects the news media even in cases where the official information later turns out to be false.

In our hypothetical case, for example, the criminal complaint contained a statement from one of the witnesses that “the fight started after Jones called Smith’s pregnant girlfriend ‘fat and dumpy.’” Because Reporter B carefully reported and attributed that information to the complaint, there is little that the girlfriend can do other than ask for a clarification, which Paper B should agree to publish.

Paper A, unfortunately, is not so lucky. While the girlfriend’s libel claim is far from certain, without the privilege, the paper may be forced to show that their reporter, at a minimum, did everything that a reasonable reporter should have done to verify that the girlfriend was, in fact, pregnant. While she did a nice job reporting the fight, it’s not clear that the reporter was as thorough confirming the girlfriend’s pregnancy.

The fair report privilege is based on the idea that keeping citizens informed about matters of public concern is sometimes more important than avoiding occasional damage to individual reputations. It gives reporters a bit of breathing room to report on official governmental conduct without having to first prove the truth of everything the government says, an overwhelming burden in some cases.

As the example above makes clear, the privilege can sometimes make all the difference in shielding a news media organization from significant liability.

While the fair report privilege seems fairly simple on its face, keep in mind the following before concluding that it will keep you out of trouble:

(1) The information must be obtained from a record or proceeding recognized as “official.” This is generally the most difficult hurdle. State laws vary and not all government documents or proceedings qualify. News reports based on judicial and legislative documents or proceedings will generally be privileged. Beyond that there can be significant differences. In some states, the privilege has been interpreted broadly and extends to virtually all government records or meetings of any significance. In other states, courts have been less willing to provide such blanket coverage to the press. For example, publishing information obtained from a police department press release may be protected in some states, but not in others. The same goes for verbal statements made by police officers. It is important, in such cases, to know the law in your area.

(2) The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding. News reports that provide an inaccurate or misleading account or that contain “extra” information not found in the official record might fall outside of the privilege. An Illinois court recently ruled that a newspaper was not entitled to rely on a fair-report defense where it erroneously used a yearbook photo of a high school honor student and star athlete for an article about the drug arrest of another student with the same name. The reporter claimed that she had been provided a “data sheet” by the police that included the erroneous yearbook photo. The court, however, noted that the data sheet itself did not report that the student was arrested and charged with any crime. Thus, even if the fair report privilege could apply to such “data sheets,” the published news article was not an accurate report of the what was in the record.

(3) The source of the statement should be clearly noted in the news report. While not all states require that the source of information be included in the story to invoke the privilege, it is a good practice to follow and prevents a person from claiming that the information was obtained from a non-privileged source.

(4) You may not be able to rely on the privilege if you act in bad faith. Traditionally, a reporter’s motivation in publishing public information has been irrelevant. As long as the information was fairly and accurately reported, the privilege was available. That is still usually the case, but maybe not always. Minnesota courts, for example, have ruled that a fair report privilege can be lost if a reporter or publisher knows the information is false when published and is motivated by ill will or a desire to hurt the subject of the news report. While few courts have followed Minnesota’s lead, student papers that publish information with “bad intent” may do so at their peril.

The fair report privilege provides significant protection to student news media seeking to inform readers about the official workings of their government. But it will only work if it is used – and used correctly.

In censorship battles, students have the power

By Mike Hiestand

When student media advisers call to relate a censorship problem one of my standard bits of advice is that they hang up.

Well, not quite. I want some details of what’s happened. I also want to know about the journalism program and its history. But after I thank the adviser for the heads-up and provide some preliminary thoughts about how I think the law might stack up, I often tell them that the most effective thing they can do is quietly step aside, give the editor my name and number and turn the reins of any censorship fight over to their students.

The most important reason for this is that advisers – unlike students – are employees of the school district. And as employees, advisers are constrained in ways – and at risk in ways – that students are not.

For that reason, it’s important that advisers explain to their students early on the difficult position in which they operate. Advisers are rooting for their students, of course, but they are also school employees. Accordingly, advisers should put their student staff on notice that once a decision is made to contest an act of administrative censorship, they, the students, must be willing to take the leadership role. It is a student publication, after all. And it is their rights – not the adviser’s – that are at stake. If a fight is to be fought over student media, students must be on the front lines.

There is another reason that I insist on student involvement. Because of their relative freedoms, students are typically a more potent adversary. A principal can order an adviser to back away from a controversial story and – though the law in this area can be complicated – they can expect their order generally to be followed (while the adviser carefully documents everything along the way). Such administrative authority clearly does not extend over students. For that reason, it is important that administrators understand early on that if they unduly restrict student media they will be up against committed students, knowledgeable about their legal rights, not simply an employee that they can threaten with charges of insubordination.

For similar reasons, it is also important that students and their advisers put some distance between themselves. Towards that end, I frequently urge advisers to let me be the one to help their students devise a “game plan” for contesting administrative foul play. The Student Press Law Center’s legal staff is in a much better position to be the “troublemaker” that apprises students of their rights, helps them challenge a principal’s censorship and provides suggestions for making sure that administrators are held fully accountable for their actions. It also allows advisers to maintain “plausible deniability” when confronted by a school official angered by the headaches being caused by his or her students. Students should make clear that they are acting on their own and that neither school officials – nor their adviser – have the ability to stop them from standing up for their rights. Bullying an employee is one thing; confronting students – and their outside supporters – is often more of a fight than school officials want to bite off.

Another reason for allowing students to take the lead is that advisers’ tongues are often tied – or should be. In recent years, courts have not been especially protective of the right of employees to bad mouth their employers – even when it’s deserved. Students, on the other hand, can write and distribute press releases, call the TV stations, talk to reporters and lawyers, address the school board, contact parent groups and other support organizations. In my experience, having students speak for themselves – particularly when they have thought through their reasons for contesting the administrative action and can compellingly articulate their position – is much more effective than having adults banter back and forth on their behalf.

Admittedly, stepping aside and keeping quiet is often easier said than done. Censorship flies in the face of everything that journalists and journalism educators stand for. It typically occurs in a highly charged atmosphere and is tough to stomach. Of course, an adviser must ultimately follow his or her conscience. Sometimes the acts of administrators are so egregious or unlawful that one must take a stand. But generally employees must do as they are told. Their only other options are to quit, challenge the administrative action through appropriate channels or be fired. A charge of insubordination – which allows administrators to obscure a “pure” First Amendment battle with complicated employment law issues – rarely helps matters. If an adviser believes that their boss’s actions have crossed the line they should contact their union, file a formal grievance or seek independent legal counsel. In most cases, however, an adviser helps the most when they have equipped their students with the tools they need to stand up for themselves – and then lets them do so.

Prior review vs. prior restraint

By Mike Hiestand

It’s time to set the record straight. Prior review vs. prior restraint. The practices are related, but the terms are not interchangeable. Both can be loosely grouped together under the broad category of censorship. Both hinder the existence of a free and independent press. And one frequently leads to the other. But they are not the same.

Prior Review

Prior review means reading only.

More specifically for student media, the term refers to the practice of school officials – or anyone in a position of authority outside the editorial staff – demanding that they be allowed to read (or preview) copy prior to publication and/or distribution.

While there exists fairly strong case law holding that prior review is unconstitutional at the public college level, there is no similar legal authority that flatly prohibits the practice in high schools. Indeed at least one federal appellate court has stated clearly that, “Writers on a high school newspaper do not have an unfettered constitutional right to be free from pre-publication review,” and the Supreme Court, while not quite as blunt, has said that school officials can exercise “prepublication control” over school-sponsored high school media, even absent written guidelines. (Non-school-sponsored, or underground, high school student media are in a much stronger legal position to contest prior review.) While some individual schools or school districts (for example, Dade County in Florida) have enacted their own policies that prohibit administrative prior review and while legal arguments might be made in specific situations, there is no federal or statewide authority that provides a clear shield.

A better course is probably to argue why prior review, even if permitted by law, is simply a bad practice.

For example, most journalism education groups in the country have condemned the practice of administrative prior review as both educationally and journalistically unsound. Among them, the Journalism Education Association, which has issued a Statement on Prior Review that can be downloaded at: http://www.jea.org/news/jobspolicy.html.

For another take, see Dianne Smith’s list of “Advantages to Ending Prior Review and Censorship,” which is part of “The Voice of Freedom” article by Alan Weintraub and Harry Proudfoot available at: http://www.splc.org/mediaadvisers.asp.

And last but not least, school officials that screen student work and essentially give or withhold from their student media an official “stamp of approval” may be creating financial liability for their school district that they might otherwise avoid. For more information, see the SPLC’s Student Media Liability Guide, available at: http://www.splc.org/legalresearch.asp?id=30.

Keep in mind that no law anywhere requires administrative prior review.

Prior Restraint

Prior restraint, on the other hand, occurs when an administrator – often after he or she has read material (prior review) — actually does something to inhibit, ban or restrain its publication.

Unlike prior review, prior restraint of high school student media is limited by the First Amendment and state laws in Arkansas, California, Colorado, Iowa, Kansas and Massachusetts (and state regulations in Pennsylvania and Washington) (all of which can be found at: http://www.splc.org/law_library.asp), and various local school and school district policies.

The legal protection from prior restraint that is available to high school student media can vary depending on where they are located and/or the nature of the media. For example, in California (whose law is similar to most of the other state laws and many student media policies found elsewhere), an adviser – and probably other school officials – can probably insist on reading a student newspaper before it goes to the printer. However, he or she can only stop it from being published if they find content that is either unlawful (libelous, legally obscene, invasive of privacy as defined by law, etc.) or seriously disruptive of the school. If school officials don’t find material that falls into one of those categories, they must allow it to be published no matter how much they might personally object.

Practically, prior review often eventually leads to prior restraint, which is why student media should fight prior review tooth and nail. To wage that fight, however, it’s essential to have a clear sense of both the enemy and your defenses.

Supreme Court decision solidifies student press rights

By Mike Hiestand

Sometimes the law works in mysterious ways. So it is with the Supreme Court’s recent decision in Owasso School District v. Falvo, which may turn out to be one of the more significant high school student press legal victories in years.

Here are the facts in a nutshell: After giving a quiz, teachers in an Oklahoma public school district would sometimes have their students trade and score each other’s papers. Afterwards, the students would call out the grades aloud so that the teacher could record them in his or her grade book. The effect, obviously, was that every student was aware of how well – or how poorly – each of his peers did on the quiz.

This grading system, not surprisingly, upset some of the students and their parents. One mother – Kristja Falvo, whose learning-disabled son was ridiculed as a “dummy” by his sixth grade classmates – approached her childrens’ teachers and asked them to stop the practice. When she was rebuffed, she went to other school officials who similarly denied her request. So she sued on behalf of her children claiming that the district’s grading practice violated her childrens’ rights under the federal Family Educational Rights and Privacy Act of 1974 (FERPA), commonly known as the Buckley Amendment.

Among other things, FERPA threatens to penalize schools that improperly disclose student “education records” that are “maintained” by the school. In this case, Ms. Falvo argued that her childrens’ grades were being illegally disclosed to other students as they were read aloud in class.

The first court to hear the case denied the Falvo’s claim. A federal court of appeals, however, reversed that decision and said that the school’s policy did, in fact, violate FERPA. The U.S. Supreme Court subsequently agreed to hear the case. All very interesting (and sad, really, that a parent had to go to the Supreme Court of the United States to fix a problem that, it seems, should have been taken care of with a single telephone call) – but what on earth does all of this have to do with high school student media? That’s where the “mystery” of the law comes in.

The big question for the Court was to determine at what point information about a student became an education record maintained by the school that officials were obligated to protect. Everyone seemed to agree, for example, that an official file (akin to the infamous “Permanent Record”) kept in a school’s administrative office that contained a student’s transcript, test scores, medical/psychological history, etc., was an education record protected by the law. Likewise, most would probably agree that a note passed between students in class would not be considered an education record. This was a case – as most court battles are – about something in between.

One of the questions that the Court had to answer to reach its decision was whether or not the actions of the Oklahoma students – specifically, the act of one student calling out another student’s grade in a packed classroom – could be attributed to the school district. If not, there could be no FERPA violation because the law, the Court correctly noted, only regulated the acts of “a person acting for” an educational institution.

This is where the student media interest kicks in.

For years, we have heard from students and advisers who tell us that school officials have claimed that their school-sponsored, student-edited media (newspaper, yearbooks, websites, etc.) are “education records” covered by FERPA and that student journalists working on such media are acting on behalf of the school. As a result, officials have used the law to prohibit students from covering certain topics or including information in student media that would identify specific students. In other words, no student names and photos. Their reasoning goes that if FERPA prohibits school officials from disclosing that student John Smith was expelled for pulling a knife on a teacher then neither can that information be reported in the student newspaper (despite the fact that the editor of the paper and 25 of his classmates might have witnessed the incident). In the mind of these school officials, students were the legal equivalent of teachers and other school officials.

The Supreme Court’s ruling in Owasso should put an end to such nonsense.

In ruling that Owasso School District’s peer grading policy did not violate FERPA, the Court made clear that students and teachers stand on separate legal footing.

“The phrase ‘acting for’ connotes agents of the school, such as teachers, administrators and other school employees,” Justice Kennedy wrote on behalf of a unanimous Court.

Significantly, the Court refused to hold the school liable despite the fact that the students were instructed by their teacher to call out their classmates’ scores. A case involving a student-edited publication or website should prove even easier for a court to decide. There, students would more likely be in control of their own actions, choosing the topics they cover and what material to publish. Moreover, student publications are not “maintained” in a school official’s filing cabinet, but rather purposefully disseminated to as wide an audience as possible.

In addition to settling the question of FERPA’s application to student media once and for all, the case has other potential benefits for student media.

We occasionally receive telephone calls from student journalists who have been told by school officials that they may not distribute surveys or questionnaires to their classmates. Very often, officials point to a federal law known as the Pupil Privacy Protection Act (sometimes also called the Hatch Amendment) to justify their decision. The PPA, which is closely related to FERPA (FERPA is found at 20 USC Section 1232g; the PPA is found at 20 USC Section 1232h), gives parents the right to review and approve their child’s participation in any mandatory instructional program or survey when it involves certain topics (for example, sex or politics). While we have argued for years that the PPA (and similar state laws) were meant only to apply to official surveys created by the school or some other government agency – and not to questions that one student asks another – our arguments have often fallen on deaf ears. Maybe now, school officials will listen. The Court’s decision in Owasso makes clear that students and school officials should not be lumped into one category. Laws that may restrict the action of schools or school officials do not necessarily limit what students may do. Further, public school officials that unreasonably restrict legitimate newsgathering activities by students, including surveys, risk violating the First Amendment.

Two other potential effects are also worth brief mention:

First, I believe public high school student media now have added legal ammunition in arguing that they have the right to reject material submitted by third parties, such as advertisements or letters to the editor. By noting the legal distinction between students and school officials, the decision supports the reasoning of lower courts that have ruled that students – unlike public school officials (including advisers) – are not “state actors.” Because the First Amendment only restricts censorship by state actors, this decision strongly suggests (as some lower courts have said outright) that there are no legal problem when students – acting alone – decide, for whatever reason, not to publish certain material in their student publication.

Finally, a Supreme Court ruling that high schools cannot automatically be held responsible for what their students do might finally persuade some school officials to loosen the reins on their student media. School officials routinely argue that they must “control” their student media to protect the school from liability. This ruling suggests – as we have long argued – that exercising such control, rather than protecting a school from liability, may actually expose it to financial risks it might otherwise avoid. Indeed, lower courts have long held that public colleges and universities will not be held responsible for libel or other content-related lawsuits brought against their student media provided no school official approved or played some other significant role in publishing the unlawful content. Merely providing funding or resource support to student media, those courts have said, is insufficient to create content liability. While the issue has never been directly addressed in a high school case (primarily because there are so few lawsuits filed against high school student media in the first place and no published court decision ever holding a high school liable), the Court’s ruling in Owasso certainly gives an indication of what the justices might think about the matter should it ever arise.

As a parent, I feel for Ms. Falvo. The Owasso grading practice stinks. If it’s any consolation, however, her case may have – in the “mysterious” ways of the law – given high school student media one of their most important victories in years.

Balance freedom, responsibility to avoid lawsuits

By Mike Hiestand

After discussing the essential role of a free and independent press and explaining the important legal protections guaranteed by the First Amendment, here is a good Day One homework assignment for your publication staff:

“Write the following 50 times: ‘I am legally responsible for everything that I write or help to publish.’”

It is a sometimes sobering – but absolutely necessary – wake up call to which many high school student journalists are dangerously oblivious.

The message is this: If you are a reporter or photographer, the law says that you are personally responsible for all of your actions while gathering the news and any material that you subsequently publish. For example, if you have written a news story or column or penned an editorial cartoon that contains serious and sloppy factual errors or if you have taken a photograph of someone in a private place you can be held liable for your mistakes.

If you are an editor, the responsibility is even greater. You can be held legally accountable for all content in which you played a part in publishing. For instance, you are responsible not just for the stories that you personally wrote, but also for all copy that you edited. If you carelessly missed catching a serious factual error in a news story submitted by one of your reporters or if you approved the placement of a misleading photograph you are liable for those mistakes. Additionally, you can be held responsible for content mistakes that appear in advertisements, letters to the editor, guest columns and any other material that you decide to publish. Big note: you are responsible for such material even though you didn’t write or create it yourself. (The law may be different for material that is published solely online. For more information, see the SPLC’s “Guide to Liability for Online Speech,” available on the SPLC website at: http://208.51.152.151/legalresearch.asp?id=24)

Who is and isn’t potentially liable will depend on who was in the chain of responsibility for publishing the material. For example, if a story about the football coach published in the sports section turns out to be libelous, the following student staffers are potentially liable: (1) the reporter(s) who wrote the story, (2) the sports page editor who did most of the editing and (3) the editor in chief, who is ultimately responsible for all content in the newspaper. The entertainment page editor, for one, would not be liable if he or she played no part in publishing the story.

While student editors and reporters are fair targets in a lawsuit involving the content of their student publication, they are typically not very attractive ones. In lawyer’s lingo they are usually what is called “judgment-proof.” In other words, while someone unlawfully harmed by a story may be able to win a multi-million dollar libel case against a student journalist in court, they are not likely going to be able to collect on their judgment. As the saying goes, you can’t get water from a stone and most students are lucky to have enough money in their pocket for lunch, let alone adequate funds to pay off a major award for legal damages.

Bringing a libel lawsuit can be eye-wateringly expensive. It is not uncommon for experienced libel attorneys to charge in excess of $200 an hour for their time. And pursuing a libel claim – especially if it goes to court – takes a lot of time. For that reason, before deciding to bring a lawsuit, lawyers and their clients usually investigate the financial background of the person or entity they are looking to sue to see if they have sufficient assets available to make a lawsuit feasible. Because penniless students rarely – on their own – justify the time and expense required to file a lawsuit, a person suing will usually try to claim that there were others in the chain of responsibility who should also be held liable for the students’ unlawful content. In their quest for a “deep pocket,” lawyers will usually also target publication advisers, other school employees, the school system and sometimes even parents.

Fortunately, lawsuits against high school student media are extremely rare. In fact, to date, there are no published court decisions in which a high school has ever been held liable for material published by its student media. Consequently, there is scant law on the topic. There are, however, a number of cases involving public college student media that could provide helpful guidance. These cases have made clear that as long as college employees – including advisers – maintain a hands-off policy with regard to final content decisions, they will not be included in the chain of responsibility and the assets of the school itself cannot be tapped. Courts in such cases have said that advisers can still provide advice, but they must leave the ultimate decisions regarding content and publication to the student staff. (For more information, see the SPLC’s guide, “Liability for Student Media,” available on the SPLC website at: http://208.51.152.151/legalresearch.asp?id=30)

Successful lawsuits against parents are almost unheard of. Parents cannot be held liable for their child’s speech merely because of the parental relationship – they must have done something wrong themselves. For example, if a mother edits her child’s underground newspaper, she would be in the chain of responsibility for that publication just like any other editor. While that’s fairly straightforward, a recent Pennsylvania case created a new – and more problematic – theory for parental liability. There a court held that the parents of a 14-year-old boy who published an especially vile and defamatory website were liable for the “negligent supervision” of their son because they knew about his website yet failed to take sufficient steps to control their son’s conduct. The case is the first – and only – reported decision holding parents liable for their child’s speech and the judge in this case -perhaps because of the especially troubling speech at issue – probably pushed the law further than it actually goes.

The liability message to students should be sent not to frighten, but to alert. With a little knowledge – and a lot of common sense – legal problems can be avoided. As mentioned above, lawsuits against high school student media are exceedingly rare. So while it’s important to be careful, journalists do neither themselves nor their readers a favor by being legal “scaredy cats.” It is essential that an appropriate balance be struck. Recognizing that with freedom comes responsibility is probably the biggest single step towards getting the balance right.

Media Law 101

By Mike Hiestand

Like the patient who avoids the dentist until he gets a toothache, too many people look to the law only for help in fixing problems when they would have been far better off had they used it to avoid the trouble in the first place.

Unfortunately, I’ve seen too many high school journalism curriculums that can be used as Exhibit A.

For many high school journalism programs, classes on media law issues – libel, invasion of privacy, censorship, access to records, etc. – are often found, if they are found at all, on the final pages of a course syllabus. Months after the class on the Inverted Pyramid and tucked somewhere between Headlines and Feature Writing, lessons focused on press freedom and responsibility sometimes seem to be accorded “advanced journalism” status: important – yes – but not part of the basic stable of journalism skills, such as writing a news lead or copy editing.

I understand the sentiment and I won’t spend my time arguing the relative importance of various journalism skills. They’re all important and figuring out a way to fit everything into a semester, or even a school year, is an impossible task. Still, just like regular dental checkups reduce the odds of time-consuming, expensive and painful root canal surgery, I’m convinced that spending an hour in the newsroom by early October introducing your student staff to libel and other media law topics makes it much less likely you’ll be spending weeks in April in a courtroom.

I sometimes give a workshop to new student media advisers and editors called “Student Press Law in 360 Seconds.” Of course, the purpose of the workshop is not to turn attendees into media law experts that can provide all of the answers. (That, in fact, can wait until April.) Rather, the goal of the hour-long session is simply to help them recognize the big questions and to make them aware of the resources to which they can turn for answers. And honestly an hour is about all it takes to at least activate one’s media law radar, to develop an awareness of the common danger zones and – most important – to know when you need to seek additional help.

As we begin another school year, here are some super-condensed media law “nuggets” to share with your student staff. Of course, there are always risks in over-simplifying complicated topics and that is certainly true here. Still, I believe than even an oversimplified ounce of prevention – presented to your staff as just that – can prove quite effective.

Libel Law
If you carelessly publish a false statement that seriously harms someone’s reputation you risk being sued for libel. Of course there is more to it – various privileges, defenses, differing legal standards, etc. – but if a young reporter knows that there can be severe consequences if they report carelessly and write something that can’t be proven true, chances are they may take their job a bit more seriously from Day One. Also, particularly when discussing libel and invasion of privacy law, I’ve found that nothing anchors the concepts more than some good examples.

Privacy Law
Everyone is entitled to some privacy and, as a reporter, there are some places that you can’t go, some things you can’t do and some stories that you can’t print – even if true. Again, while there can be some complicated exceptions to the rule, the law generally tracks common sense regarding what private places are off limits absent consent (inside a person’s home, the school locker room, etc.), what newsgathering practices are usually prohibited (planting an electronic bug, hacking into private e-mail, etc.) and what topics are so private or embarrassing that they can’t be written about. Of course, when it comes time to actually cover a sensitive news story it will be important to spend time discussing the “newsworthiness” defense as well as the general role of the press in reporting news, even news that might occasionally make newsmakers or some readers uncomfortable. Again, the primary goal is to make students mindful that lines do, in fact, exist and that questions need to be asked before – not after – those lines are crossed.

Censorship
At a public high school, students should be informed from early on that they are protected by the First Amendment and all students should be told that any censorship by government (and school) officials – while it may not always be worth fighting – should never be accepted as the norm. Moreover, while the law may now give high school officials the “right” to censor some school-sponsored student publications, that doesn’t mean that it is the right thing to do or that such official conduct should go unchallenged. Do not take it for granted that this is a message that they have picked up in their civics class or have somehow absorbed during their dozen-plus years as American citizens. Sadly, that is often not the case. Fully explaining the scope of First Amendment protection in the post-Hazelwood era is, unavoidably, somewhat complicated and may need to tabled for later. However, explaining that censorship is not something simply to be yawned at as normal is a lesson that should not wait.

Copyright Law
If you want to publish something that you didn’t create for yourself three rules kick in: Rule #1: You must give credit to whomever did create it. Rule #2: Before you publish, you need to obtain the owner’s permission. Rule #3: Until you conclusively determine otherwise, you must assume that everything in every form (including material on the Internet) is owned by someone else and protected by a copyright. If you always follow these three rules, you’ll never have a copyright problem. Simple as that. However – and this is where it gets complicated – sometimes you can skip the rules. For instance, some things can’t be copyrighted. Titles, slogans, short phrases and other non-creative works fall into that category and you don’t need anyone’s permission to use them. Likewise, facts and ideas are not subject to copyright. Also, copyrights expire – and once they do, consent to use the work is no longer necessary. The most important exception for student journalists to grasp, however, is Fair Use. The Fair Use exception generally permits the use of limited portions of copyrighted material without first seeking permission if the material is a central part of a news story, a review, commentary or educational discussion. While a full understanding of Fair Use may take some time, it is fairly easy to help students recognize situations where the issue might arise and when they need to ask more questions.

Freedom of Information Law
Records and documents held by public bodies – including public schools – must generally be made available upon request. Meetings conducted by public bodies must generally be open to the public. And there are laws, fairly easily found and used, that make it so. Yes, of course, there are exceptions. But those hurdles and the specifics of the law can be addressed as they arise. The important thing is that student journalists be reminded that in America the government is supposed to work for the people and the people, on whose behalf the press operates, have a right – and usually the legal means – to know what they’re up to.

Reporters Privilege
Using confidential sources to obtain information should be a rare event and even then should generally only be done as a last resort. The reason for this is simple: If you promise a source that you will keep his identify secret, you must be prepared to keep that promise – no matter what – until the source tells you it’s okay to do otherwise. Unfortunately, the “no matter what” part can sometimes be unpleasant. Shield laws and/or court-recognized reporters’ privileges exist in most states and offer journalists some protection against having to divulge confidential information and it is a good idea to know where you stand before making any promises. Also, it’s important to keep in mind that students and advisers may not always stand on the same legal footing. As school employees, student media advisers may be legally required to notify school officials about unsafe or illegal conduct of which they are aware. Therefore, where student journalists are working with a source that may be involved in such activity (for example, a student that admits to having purchased drugs on school grounds), they should be careful not to disclose the source’s identity to the adviser. This will avoid putting everyone in a sticky situation.

There are certainly other media law topics that are worth exploring (obscenity, advertising, Internet law, etc.), but where time is limited covering the above makes for a simple but effective legal checkup.

Okay, now you can get back to the joys of copy editing.

Avoid legal pitfalls in changing names of sources

By Mike Hiestand

The use of pseudonyms – fictitious names – in news reporting is a fairly common, if sometimes controversial, practice.

While there are many reasons for hiding or disguising the identify of a subject, one of the most common is to avoid legal problems. In order for a person to successfully claim that they have been defamed or that private facts about them have been unlawfully revealed in a news story, that person must first show that they were identified. A story that successfully disguises or hides the identity of its subjects is generally safe to report as far as the law is concerned.

Still, while the practice can serve a useful function, there are serious ethical and legal pitfalls that can arise. Indeed, some news organizations – citing the potential for abuse – flatly prohibit their use.

The use of pseudonyms is most when a story involves a highly sensitive topic. For example, high school papers have frequently used pseudonyms to cover stories involving substance abuse or mental illness. No amount of describing treatment programs or providing a generic list of symptoms can beat actually talking to a student who has suffered the terrible pain of depression or who is being treated for alcoholism. Their stories are real, and their often dramatic and wrenching experiences can bring the issue to life. While a subject may want to help their classmates or colleagues by sharing their experience, they are often unwilling to disclose their identity, preferring to handle their situation privately. Still, in such cases, journalists can usually talk to other sources (health care workers, close family members) or obtain documentation to verify the accuracy of the story.

At other times, pseudonyms are used to report a story whose facts would be difficult or impossible to confirm. If names were used the story would put the publication at serious risk for a libel lawsuit. For example, a student paper recently reported on the issue of child abuse. The student subject, whose name was disguised, told a harrowing tale of her experience as an abuse victim. She had, however – like many such victims – never reported her claims to police or anyone else. As far as she could tell, she and her abusers, in this case her parents, were the only ones that actually knew the facts – and she did not want them alerted of her accusations. The use of pseudonyms in these kinds of stories is more problematic. Clearly, the story is an important one and the reason for withholding or disguising the identity of the source is understandable. Still, the inability to verify the story through other sources is one that should give all journalists pause. Subjects sometimes lie or exaggerate. So, sadly, have a few reporters when their work was not subjected to normal editorial scrutiny. When such deception is discovered, a news organization’s reputation can be seriously harmed.

Warnings aside, once the editorial decision is made to use a pseudonym (or to withhold a subject’s identity altogether), here are a couple of things to keep in mind:

Make sure that your disguise is complete. If you have promised a source confidentiality, you must honor that promise. No excuses. Obviously, you should not use their name – or any derivative of their name. But identification can also take place where you provide other descriptive detail. Addresses, place or date of birth, weight, eye color, sibling or pet names, places or types of employment, school activities or classes, old boyfriend/girlfriend names, religious affiliations – even the type of car the subject drives are all the sort of facts that can – on their own or taken together – identify an otherwise unnamed individual. As a general rule, be careful about using identifiers that narrow down the list of possible subjects to a group of under 25 (or better yet, 50). For example, if there are 100 teachers at your school, you can describe the subject as a “Washington High School teacher.” Assuming that gender is split 50/50, you are also safe in identifying him by gender. If, however, there are only five math teachers at Washington High School, you cannot safely describe him as such. There is a fine line between providing enough information so that the story does not mislead readers and providing too much, which could lead to identification, but that is a problem you assume when you agree to use pseudonyms.

Make sure that a “disguised” subject does not too closely resemble a third party to whom you might never have intended to refer. For instance, in the above example, identifying a subject as a Washington High School math teacher will not only get very close to blowing the cover of your subject, it will likely also upset the other four math teachers who may also be reasonably viewed with suspicion. Also, it’s a huge world out there. Stick with common, generic pseudonyms and descriptions. For example, “inventing” the name “Daisy Doodles,” for your subject might seem like a safe thing to do until the real “Daisy Doodles” from Florida and Oregon (I looked it up) come knocking on your door after finding your story published on the school website. Simply calling your subject “John” or “Mary” may be a better choice.

Readers must be informed. A prominent disclaimer at the top of the story explaining that names (and any other details) have been changed is a must. Not only do ethics demand that readers not be misled, a disclaimer also provides protection against claims that a party has been wrongly identified.

Newsroom staff must be made aware of the importance of protecting the subject’s identity. Ideally, only the reporter (and perhaps an editor) should know the identity of the source. If that’s not possible, staff should be clearly instructed not to engage in gossip or the dissemination of information outside the newsroom. If too many people know the identity of your subject, the risk of disclosure is too high and the story will need to be shelved until the source agrees to waive her requirement of anonymity.

In the end, the decision to use a pseudonym or withhold a source’s identity is primarily an editorial decision. As the above suggests, however, it is not a decision that should ever be made lightly. While the benefits can be great, so too are the risks.