During the summer following her freshman year of high school, Jane completed treatment for an eating disorder. The in-patient treatment and counseling she received helped her understand and overcome the problem that had affected her since she was about 12. Now a 17-year-old high school senior, Jane is, by all measures, successful and happy. She has never told anyone other than her family and a few close friends about her past and she is sure that many of her classmates and teachers would be shocked to hear that in between volleyball practice, her studies and a part-time job, she volunteers her time by providing telephone peer support to other young women currently undergoing treatment for potentially fatal eating disorders.
She knows that, statistically, some of her classmates are going through the same thing she did. She remembers how alone she felt and how that sense of isolation and embarrassment prevented her from getting the help she needed until it was almost too late. It is for that reason that she has sought out The Student Times, the student newspaper at her school, to tell her story. Though her parents would rather she keep her past to herself, Jane is proud of having successfully confronted her eating disorder and wants to encourage others to do the same by putting a face on a problem that is too often kept a secret. She hopes to raise awareness and let others know that help is available.
Unfortunately, when school officials hear of the newspaper’s plans to publish Jane’s story, they order it removed. Jane, they point out, is a minor. Her story, they say, is too personal and private to share. Despite Jane’s unambiguous consent, they fear allowing the student paper to publish her story could subject the school to legal trouble, particularly since Jane’s parents have been unwilling to sign a consent form.
Jane is fictional. But her experience — and the experience of The Student Times in trying to help her share her story — is not. Whether the story involves eating disorders, substance abuse, teenage pregnancy or some other private and sensitive personal experience, student and commercial news media grapple with how best to handle stories such as Jane’s and other “minors” on a regular basis.
Last spring, for example, officials at East Bakersfield High School in California censored a feature spread on homosexuality from the student newspaper. The spread included interviews with openly gay students on campus who wanted to share how they felt they were treated by others, an in-depth interview with a gay student and her mother, interviews with a student and a local pastor who felt homosexuality was wrong, a story about the research that had been done on homosexuality and a story that listed statistics on homosexuality in America and violence against gays. Despite the fact that the students had all consented to the newspaper’s use of their names and experiences, school officials censored the story claiming they were concerned for the students’ safety. The case is currently in court.
The right to say ‘yes’
Because so many of their subjects involve young people, a question of particular interest to student media is whether minors (in most states defined as a person under the age of 18) can validly consent — without a parent or guardian — to the publication of stories about themselves that either could invade their privacy or could damage their reputations by libel.
While each case is unique, involving a number of factors both legal and practical that should be carefully weighed prior to publication, such thorough analysis frequently goes missing in favor of a much more rigid test, which simply asks: how old is the subject of the story? Too often the result is a knee-jerk reaction to censor or withhold publication, fearing either legal repercussions or the public criticism that may come when young people share stories or experiences involving topics that some might find uncomfortable.
Such a response is not only legally simplistic — and, in most cases, probably misguided — it also deprives young people of an opportunity to have their voices and their stories heard on topics that matter deeply to them.
The law: not simply a matter of age
The American Law Institute has noted in its Restatement, a widely accepted legal authority, that a person’s consent should be effective as long as the person giving the consent has the legal capacity to do so.[1] In a comment on that section, the Restatement says 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.[2]
Courts have generally followed the reasoning of the Restatement in cases of invasion of privacy and defamation, finding that a minor’s consent is valid when the minor seems to be sufficiently mature and capable of realizing the possible repercussions of the consent. In one case, for example, a court found that a national television talk show did not invade the privacy of a 16-year-old girl by airing her stepmother’s reading of the girl’s police record in response to the girl’s verbal attacks on her stepmother during the same broadcast.[3] The court based its holding on its finding that the minor appeared on the show’s tape to be sufficiently mature and capable of realizing that by verbally attacking her stepmother on national television she would be exposing skeletons in her own closet to public airing.
“She was not so young,” the court wrote, “as to be incapable of realizing that she would be in a glass house throwing stones. We need not decide at what age a child is sufficiently mature to waive her right to privacy, but 16 is old enough when no circumstances of deception or overreaching or limited competence are shown.”[4]
In another case involving a minor’s appearance on a television talk show, a New York court found that “The Sally Jesse Raphael Show” did not defame or invade the privacy of a 15-year-old girl who represented herself as a prostitute on the show. The court found that because the girl consented to the presentation of herself as a teenage prostitute — a claim she later denied — she could not subsequently sue the show for defamation.[5] The court specifically rejected the girl’s claim that there was an exception for minors to the general principle of consent, finding that the girl “offered no authority for this proposition, and the Court is aware of none.”[6]
News v. trade
A number of court’s have noted a distinction between a minor consenting to publication of information about themselves for purposes of news and information — where a minor’s consent is valid — and publication for commercial or trade purposes where a parent’s or guardian’s consent may be required. In fact, a number of states have passed misappropriation or “unauthorized publication” laws that make it unlawful to use a minor’s image for advertising, promotional, trade or other commercial purposes without first obtaining the consent of a parent or guardian.[7] Courts have made clear, however, that such laws “do not apply to reports of newsworthy events or matters of public interest.”[8]
In most cases, it will be easy to distinguish between commercial and non-commercial use. Clearly, interviewing a student for a news story or feature would not be considered “commercial.” Indeed, with the exception of using minors as models in advertising or for promotional material — where parental consent should always be obtained — most student media are unlikely to use minors’ images for purposes that a court would consider commercial.
Still, in other contexts, it has been more difficult for courts to distinguish between cases involving news and those involving trade.
In Florida, for example, a federal district court rejected a 17-year-old girl’s claim that the producers of the Girls Gone Wild video series, in which young women are videotaped exposing themselves in public places, unlawfully violated her privacy when it sold and distributed a video of the girl voluntarily exposing her breasts to a cameraman on a Panama City public street.[9] Even though the video was sold, the court found that the young woman was not shown endorsing or promoting a product — acts covered under Florida law — but was rather simply part of an expressive work in which she voluntarily consented.
Having found that the use of the 17-year-old’s image was not a commercial use for purposes of Florida’s “unauthorized publication” law, the court further went on to explicitly reject the argument that a minor could never consent to publication. “Florida law,” the judge wrote, “has never recognized that a minor is incapable of consenting to the publication of her image and likeness where no compensation is involved.”[10]
In a more recent case, a Texas appeals court refused to lift a temporary restraining order issued against the maker of a video game that included images of a 17-year-old girl attending Spring Break on South Padre Island.[11] The girl, who used a false identification card and signed a consent form, voluntarily exposed her breasts while taking part in a trivia game that was set up on a public street. After her brother told her that the video game included multiple images of her topless, she sued the company for, among other things, invasion of privacy based on misappropriation of her name and likeness. This time the court found that the use of the girl’s image in the video game might be considered a use for commercial gain and therefore could constitute an unlawful invasion of privacy by misappropriation. In such a case — which the court pointed out was different from situations that did not involve commercial gain — the minor girl’s consent might be ineffective.[12] The case is ongoing.
If material is newsworthy, consent may not be required
While obtaining a minor’s consent may sometimes be required to protect news media when reporting on highly sensitive or private matters in which the minor is involved, in other cases the issue of consent need not even be raised. Where a story falls within the broad definition of “newsworthy,” courts have generally ruled that a minor’s privacy rights are no greater than those of adults, in which case it not necessary for a publication to gain the consent of minors or their parents to report the story. In a unanimous 1979 decision, the U.S. Supreme Court ruled in Smith v. Daily Mail that the First Amendment protects the right of journalists to use the names of minors in newsworthy stories as long as the information is “lawfully obtained” and “truthfully” reported.[13] Following such reasoning, a Missouri court, for example, found that a TV news crew did not violate a 15-year-old girl’s right to privacy by taping her during a police search of her home. The court found the police action to be “newsworthy” and specifically rejected the teen’s claim that Missouri law and public policy offered minors special protection.[14]
However, at least one court has recognized the limits of newsworthiness and found that when reporters deal with children, particularly those under the age of 12, they must think about the probable consequences of their conduct and operate within the bounds of basic decency.[15]
Why it matters
There are exceptionally strong policy and legal arguments in favor of recognizing a minor’s consent as valid in the right circumstances. Such reasoning is in line with that adopted by courts in determining whether a minor may consent to other kinds of actions that may harm them,[16] and whether a child is responsible for injuries he causes,[17] his crimes[18] and confessions to crimes.[19]
Such a position also 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 recovering drug addict seeking to persuade other teens to “stay clean” by relating his experiences would likely find few media outlets willing to touch his story for fear of being sued by his parents or by him when he is older. 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 be valid. 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 could provide valid consent. Most elementary-aged children, because of their immaturity, probably could not.
Obtaining consent
Remember, the need for consent, whether from a minor or parent, only arises when the information to be published is private or damaging to the person in question. For example, consent is never legally required for publishing a photo of someone in a public place or publishing information that is widely known or not embarrassing or hurtful.
But when the material to be published could constitute an invasion of privacy or libel, consent is an important safeguard for a news organization. When obtaining consent from a minor, it is essential that journalists take extra precautions to insure that the minor is fully informed of what is taking place. First, make sure that the minor understands that you are a reporter working on a story that will be published. If you are a student journalist, tell him what your story will be about and how you intend to use the information he provides. Let him know that your publication is read not only by other students, but also 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. Most importantly, tell him he is under no obligation to give you the information you are requesting. You may also want to suggest that he talk with a parent or some other adult before proceeding.
While not necessary to be legally enforceable, the Student Press Law Center strongly encourages that you obtain the minor’s consent in writing. The written consent should note how the minor’s information will be used. It should also state that the reporter and minor discussed the implications of giving consent and that the minor attests that he fully understands what he is doing when he signs the consent statement.
Finally, even if it appears the minor is capable of giving valid consent (and assuming the minor does not object), it never hurts to obtain the consent of a parent or guardian (if one is willing to provide it) as well. Certainly, as discussed above, if the publication involves any sort of trade or commercial use, parental or guardian permission must be obtained.
Summary
Recognizing the validity of a minor’s consent is an issue too important to be left to a simple, one-size-fits-all age test. Where a young person is capable of understanding the nature and consequences of publicly disclosing personal or sensitive information about themselves, such informed consent should be valid. While news media should also carefully weigh the pros and cons of publishing information about a minor, they — just like courts, school officials, parents and others — need to keep in mind that young people often have important stories to tell and respect their right to choose to share them.
1 Restatement (Second) of Torts § 892A.
2 Id. at cmt. on (2).
3 See Howell v. Tribune Entm’t Co., 106 F.3d 215 (7th Cir. 1997).
4 Id. at 221.
5 Weber v. Multimedia Entm’t Co., No. 97 Civ. 0682(JGK), 2000 WL 526726 (S.D.N.Y. May 2, 2000), reconsideration denied, 2000 WL 724003 (S.D.N.Y. June 5, 2000).
6 Id. at 7.
7 For example, California’s law provides that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. Cal. Civil Code § 3344(a) (emphasis added). New York law states that “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” N.Y. Civ. Rights Law § 50 (emphasis added).
8 Weber, 2000 WL 526726 at 5.
9 Lane v. MRA Holdings, 242 F.Supp.2d 1205 (M.D. Fla. 2002).
10 Id. at 1218.
11 Topheavy Studios, Inc. v. Doe, NO. 03-05-00022-CV, 2005 WL 1940159 (Tex. App. Austin Aug 11, 2005), reh’g overruled, (Sep 14, 2005).
12 2005 WL 1940159 at 5.
13 Smith v. Daily Mail, 443 U.S. 97 (1979). See also Okla. Publ’g Co. v. District Court, 430 U.S. 308 (1977) (Supreme Court lifted an injunction that prohibited publication of the name or photograph of an 11-year-old boy charged with second-degree murder). A narrow variation to this general rule may exist in cases involving the publication of the names of minors obtained during otherwise closed hearings involving. Where reporters have agreed not to disclose information as precondition to attending such proceedings they may be legally bound to honor their agreement.
14 Parker v. Multimedia KSDK, Inc., 27 Med. L. Rptr. 2305 (Mo. Cir. Ct. 1999) (The court also suggested that girl’s failure to object to TV news crew’s filming of police search of family’s home constituted a valid waiver of her right to privacy). Note that in 1999 the U.S. Supreme Court issued rulings in a set of cases that cast some doubt on the legality of some so-called police “ride-alongs.” For more information — and list of practical suggestions when considering a ride-along, see: Reporters Committee for Freedom of the Press, From The Hotline, News Media and the Law, Summer 2003, http://rcfp.org./news/mag/27-3/hot-fromtheh.html.
15 In KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023 (Cal. Ct. App. 1995), the court held that a reporter intentionally and negligently inflicted emotional distress upon three girls, ages 11, 7 and 5, by coming to their home uninvited and telling them of the murders of two of their playmates, who lived next-door. At the time, the girls did not know of their friends’ violent deaths, and the reporter told the children that their friends’ mother had killed her children and then herself. Id. at 1027. The court found that the reporter told the children of the murders in such a manner as to cause them emotional distress that would be demonstrative to the TV audience. The reporter also questioned the girls about the murdered family on camera and intruded uninvited into the minors’ home though fully aware that the children’s parents were not home. The court found that the reporter acted with an “alarming absence of sensitivity and civility” and was therefore guilty of intentional infliction of emotional distress. Id. at 1028.
16 See, e.g., Leonhard v. United States, 633 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981) (children who consented to being taken into hiding with stepfather under the federal witness protection program could not later sue the government for abduction and false imprisonment); Westbrook v. Hutchinson, 10 S.E.2d 145 (1940) (court implied that woman sued for false imprisonment by 11-year-old would have defense if she proved child stayed with her voluntarily).
17 Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423 (9th Cir. 1976).
18 Redman v. State, 580 S.W.2d 945 (Ark. 1979).
19 Gallegos v. Colo., 370 U.S. 49 (1962), reh’g denied, 370 U.S. 965 (1962).