Students were eating their lunch in the high school cafeteria when an altercation broke out involving an 18-year-old senior and a 17-year-old junior. It quickly escalated into a serious and bloody fight. When a teacher tried to break things up, he was shoved away by the junior and fell onto a table, hitting his head, causing a moderate head wound. Eventually, school security intervened and police were called. Both students were subsequently handcuffed and taken to jail, which was witnessed by several students. Both students were eventually charged with assault. Word of the fight spread quickly through school and journalists from the school’s student newspaper posted a short story to their website the next day.
Before posting, a student editor contacted the SPLC. He’d been told by an administrator when seeking comment that he couldn’t use the name of the 17-year-old student because he was a minor and was seeking some guidance.
Good high school journalists take seriously the obligation to cover their peers in meaningful ways. As student media struggle to provide both a voice for other students and serve as a watchdog of student misbehavior, many reporters and editors are facing challenges when it comes to telling student stories that some would rather not be told. Young journalists are frequently asked — or ordered — by school administrators to leave out information that identifies individual students. And many, questioning the wisdom and legality of these restrictions, ask why.
What the courts say
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. ((Smith v. Daily Mail, 443 U.S. 97 (1979). See also Oklahoma Publishing 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. Where reporters have agreed not to disclose information as precondition to attending such proceedings, they may be legally bound to honor their agreement (see discussion, below).)) In that case, the Court struck down a West Virginia law that had been used to prosecute two West Virginia newspapers that printed the name of a 14-year- old junior high school student alleged to have shot and killed a 15-year-old classmate.
Following the Daily Mail ruling, other courts have, for example, ruled that newspapers can publish the name of a minor charged with unauthorized use of a motor vehicle and hit-and-run driving, ((Mikan v. Valley Publishing, 589 P.2d 1201 (Ore. App. 1979).)) the name of a 7-year old boy who was brutally beaten,((Juan L. v. E. W. Scripps Co., 2013 Cal. App. Unpub. LEXIS 3506, 41 Media L. Rep. 1972, 2013 WL 2145090 (Ca. Ct. App. 2013))) the name of a high school student viciously attacked by his classmates at school,((Tucker v. News Publishing Co., 397 S.E.2d 499 (Ga. Ct. App. 1990) )) the name and photograph of a 12-year-old who was charged with the attempted murder of a police officer,((Arkansas Democrat-Gazette v. Zimmerman, 20 S.W.3d 301 (Ark. 2000).)) the names of juveniles who testified in a trial in which the adult defendants were charged with supplying alcohol to minors,((George W. Prescott Publ’g Co. v. Stoughton Div. of the Dist. Court, 701 N.E.2d 307 (Mass. 1998).)) the photograph of a minor child taken while in the arms of her mother on the courthouse steps following a much-publicized paternity hearing((Heath v. Playboy Enterprises Inc., 732 F.Supp. 1145 (S.D. Fla. 1990) (men’s magazine’s publication of photograph of minor child — the grandson of former talk show host Johnny Carson — did not give rise to private facts case brought by child’s court-appointed guardian despite lack of consent to photo by child).)) and the name and course of mental health treatment of an individual convicted of sexual assault when he was 14, but who was no longer a minor at the time of publication.((Register-Herald v. Canterbury, 449 S.E.2d 272 (W.Va. 1994).))
Even where a court proceeding or government record can be lawfully closed by government officials, courts have generally said that the government may not restrict the press from publishing newsworthy information from such records or proceedings — including minor names — when such information has been lawfully obtained through other means.((See, e.g., In re H.N., 632 A.2d 537 (N.J. Super. Ct. App. Div. 1993) (New Jersey appellate court upheld the right of a newspaper to publish the name and other identifying information about a 16-year-old charged with scalding her two-month-old nephew to death while bathing him. The court noted that the information was lawfully obtained from press conferences and other disclosures made by law enforcement officials.) ))
However, where a reporter voluntarily makes an agreement ahead of time that allows them to obtain access to information that would otherwise be off-limits, that agreement must generally be honored. For example, in most states juvenile court proceedings and records can be closed to the public. Some states also allow judges to close down the portions of adult trials that require juvenile testimony or evidence. In such cases, the decision of whether to allow access is often left to the discretion of a judge.
In such cases, judges have occasionally placed conditions on reporters’ access to otherwise closed juvenile proceedings by allowing reporters in — but only after they have promised not to disclose certain information about minor participants that might be revealed during the proceeding. Such conditions are probably valid.((Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. 1993) (Minnesota Supreme Court upheld lower court order permitting media to attend closed trial only if they agreed not to reveal the names of the juvenile victims and witnesses); In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(Illinois Supreme Court ruled that a reporter admitted to a juvenile proceeding after agreeing not to disclose names could not publish the identities of two minor children, which he had learned during the course of the proceedings); In re Minor, 563 N.E.2d 1069, 1077 (Ill. App. 1990). See also, Edward A. Sherman Publ’g Co. v. Goldberg, 443 A.2d 1252 (R.I. 1982).))
But even in such sealed proceedings, the power of judges to restrict press coverage is limited. For example, a California appellate court struck down an order that prohibited reporters admitted to a juvenile custody proceeding from revealing virtually any information about the minors involved, including a ban on interviewing the minors without an attorney present, interviewing their caretakers with the minors present, interviewing any mental health professional to whom the minors had been referred or “doing any act in the future that might interfere with reunification or have a negative impact upon the providing of reunification services.”
While the news media could have been denied access to the proceeding altogether and the ban on information obtained in the sealed proceeding was enforceable, the appeals court said, it was beyond the juvenile court’s power to restrict the press’ right to investigate and publish information it had lawfully obtained outside of the courtroom.(( San Bernadino County Dep’t of Public Social Services v. Superior Court, 283 Cal.Rptr. 332 (Cal. Ct. App. 1991). See also, In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(information obtained by reporter outside of closed juvenile hearings not subject to non-publication agreement).))
A more recent case out of New Jersey followed suit when it upheld a judge’s order that news media not publish the names of minors involved in an alleged sexual assault “if that information was obtained through access to the court’s confidential records or proceedings.” The court made clear that its ruling would not “prohibit publication of information the media appellants have obtained or may in the future obtain through lawful means.” (( State ex rel. Doe, 2015 N.J. Super. Unpub. LEXIS 281 (NJ Super. Ct. 2015). ))
Despite the Supreme Court’s clear ruling in Daily Mail and the lower court cases that have followed, the misconception that juvenile names are strictly “off-limits” persists. Student journalists continue to battle — and educate — school officials over their right to publish student names or other identifying information as part of their regular news coverage.
Of course, the same invasion of privacy rules that limit the publication of identifying information about adults in certain situations apply to information about minors as well.((See SPLC Legal Brief: Invasion of Privacy Law , Available online at:http://www.splc.org/legalresearch.asp?id=29 (last viewed Jan. 30, 2020).)) But these limitations are based on restrictions that apply to all, not just minors.
Student Information and FERPA
Some school officials — predominately at the high school level — are squeamish about allowing student journalists to publish information about their classmates. In some cases they have even required parents to sign consent forms before their child’s name or photo can be published in student-edited media. In rare instances they have simply banned the use of student names or photos entirely. Often, they justify their censorship or restrictions by pointing to a federal law known as the Family Educational Rights and Privacy Act, also sometimes called the Buckley Amendment.((20 U.S.C. Sec. 1232g.)) While their intentions in such cases is usually not sinister, their interpretation of the law is misguided.
FERPA was enacted in 1974 after Congress found that some school officials were mishandling student records. The law has two parts. First, the law requires that students and parents be given access to the students’ own school records. Second — and this is the provision that causes most of the confusion — FERPA penalizes schools that have a policy or practice or indiscriminately releasing certain student “education records” to third parties.
Where the policies directed at student media miss the mark is that FERPA only restricts the release of information by school officials or their “agents” acting for them. Outside parties — including student reporters, who are neither state actors, employees nor agents of the school((See, e.g., Owasso Independent School District No. I-011 v. Falvo, 122 S.Ct. 934, 939 (2002) (a student is not a person “acting for” educational institution for purposes of FERPA); Yeo v. Lexington, 131 F.3d 241 (1st Cir. 1997) (en banc), cert. denied, 524 U.S. 904 (1998)(student editors of high school yearbook were not “state actors” and their editorial acts must be judged apart from school administrators); McEvaddy v. City University of New York, 633 N.Y.S.2d. 4 (1995). See also, Sevier County Bd. Of Educ. v. Worrell, 1994 WL 666926 (Tenn.App. 1994)(distinguishing between information about students obtained by reporter and student records maintained by the school and protected from disclosure by state’s version of FERPA). The U.S. Department of Education, the agency charged with enforcing FERPA, has said: “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘education records’ maintained by an educational agency or institution, or by a person acting for such agency or institution. Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, U.S. Department of Education (Sept. 1993).)) — are not restricted by the law. Unfortunately, school and government officials sometimes do not understand — or simply choose to ignore — this distinction.
While it is entirely appropriate, for example, that school districts create a policy regarding a principal’s disclosure of protected student information to a student reporter (or anyone else) during an interview, it is wrong for the school to impose the same limitations on student-edited media prohibiting them from disclosing to their readers accurate information lawfully obtained by student journalists during the newsgathering process. This would include attempts by school officials that require student-edited media to adhere to so-called “opt-in” or “opt-out” FERPA policies often distributed to parents at the beginning of each school year that give parents the right to control how school district officials disseminate information about their children, such as in an official school district newsletter or district marketing materials. Rules that may apply to school officials, however, do not necessarily apply to students and any policy that imposed such a flat ban on the publication of accurate, newsworthy and lawfully obtained information by student-edited media would almost certainly be unconstitutional.((For a thorough discussion of the Family Educational Rights and Privacy Act and its application — or misapplication — to student media, see our FERPA Page at: https://splc.org/ferpa. For a discussion of public high school students’ First Amendment rights, see the SPLC’s Hazelwood Guide, available online at: https://splc.org/2015/11/hazelwood-school-district-v-kuhlmeier-2/. For information about the rights of students attending private schools, see the SPLC’s Legal Guide for the Private School Press, available online at: https://splc.org/2012/12/legal-guide-for-the-private-school-press_1201/ (documents last viewed Jan. 30, 2020.) ))
In the only published court decision to address the issue in the context of student media, a New York federal court refused to extend FERPA to cover the release of student information published in a high school student newspaper, ruling “the prohibitions of the amendment cannot be deemed to extend to information which is derived from a source independent of school records.”((Frasca v. Andrews, 463 F.Supp. 1043, 1050 (E.D.N.Y. 1979). See also Williams v. Howell Cheney Tech. High Sch., 2012 U.S. Dist. LEXIS 162539, 2012 WL 5507259 (D. Conn. 2012) (finding that FERPA does not “extend to information which is derived from a source independent of school records[,]” that is, information that is widely “known by members of the school community through conversation and personal contact[,]” because “Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records.”) ))
And certainly such a ban would violate the growing number of state-based “New Voices” laws that significantly limit the legal justifications school officials can use to censor the content of student-edited media. ((More information available at: https://splc.org/new-voices/ ))
In addition to both the inapplicability of FERPA and the legal protections against censorship, requiring student media to limit news coverage to “approved” students destroys the student media’s reputation as a credible source of news. It also creates a logistical nightmare, forcing staff to consult an ever-changing master list of “approved” students who had consented to coverage before writing or publishing a story about them or including their photo in the yearbook. Under such a complicated scheme it is inevitable that students or school officials will make mistakes. “Unapproved” names or photos will be published in some cases and “approved” students mistakenly omitted from student publications such as the yearbook in others. Such mistakes could expose a school district to liability — or certainly accusations of incompetence — that had previously not existed and could (and should) be avoided..
School district lawyers and administrators that attempt to enforce such policies are simply asking for trouble. FERPA does not require it, the Constitution almost certainly prohibits it — and common sense suggests the system is both fraught with problems and just plain stupid. Indeed, over the years student news organizations have published millions of individual publications — full of student names and photos — without incident. Since FERPA’s passage in 1974, no school has ever been fined under the law because of anything published in a student publication.
Online Publications
From the moment the first high school student media websites went online in the mid-1990’s, school officials began imposing special restrictions on their use by student journalists. Among the more common restrictions are limitations, or even outright bans (which, fortunately, have become far less common), on the posting of student photos or names in the online version of student-edited publications. Such policies have often been justified by pointing to some unspecified privacy or safety concern, often accompanied by a blanket claim that the law required such restrictions.((See, e.g., Policy restricts newspaper’s online edition, Student Press Law Center Report, Fall 1998, at 20 (last viewed Dec. 4, 2006).))
In fact, there are no federal laws that require school officials to prohibit or restrict student journalists from publishing the names or photos of students in their online publications when that information is lawfully obtained, accurate and newsworthy.((While there was, for a while, some question about whether a provision in the Children’s Internet Protection Act (CIPA), 47 U.S.C. § 254, could be construed to prohibit school-sponsored online student media from publishing identifiable information about students when posted to an official school server, those arguments have lost their steam. CIPA, a federal law passed in 2000 that requires schools and libraries receiving subsidized rates for Internet access to install filtering software on their computers, contains a provision that requires schools to adopt and implement an Internet safety policy that addresses unauthorized disclosure, use and dissemination of personal identification information regarding minors. 47 U.S.C. Sec. 254(L)(1)(a)(4). Some school districts had interpreted this provision as prohibiting the publication of minors’ names or photos in student-edited media that are hosted by school Web sites. In fact, the Federal Communications Commission has offered no guidance as to what constitutes personal identification information. Instead, the FCC has concluded that “local authorities are best situated to choose which … Internet safety policies will be most appropriate for their relevant communities.” Federal-State Joint Board on Universal Service: Children’s Internet Protection Act, 47 CFR Sec. 54 (2001). This vague directive — and the lack of a mandated definition regarding what constitutes ‘personal identification information’ — hardly supports the argument by some school school administrators that CIPA compels them to prohibit the publication of students’ names or photos on school Web sites. If a school remains concerned, an easy fix is to post student media on a server unaffiliated with the school such as the independent Student Newspapers Online (www.snosites.com).)) Where information can be lawfully published in the print version of a student publication, it should be lawful for student editors to publish it in their online media as well.
While federal law presents no barrier to accurate, otherwise lawful news reporting of student information in online student media, at least two states — Maine and New Jersey — passed laws that govern the publication of student information online. Fortunately, no attempt has been made in either state to enforce the law against student media and there is nothing to suggest that the plain language in both statutes applies to anything other than material posted by school officials.((For example, the Maine law states that: “[A] public school may not publish on the Internet or provide for publication on the Internet any personal information about its students without first obtaining the written approval of those students’ parents.” Me. Rev. Stat. Ann. tit. 20-A, sec. 6001 (2009)(emphasis added). New Jersey’s law seems even more clear: “The board of education of each school district and the board of trustees of each charter school that establishes an Internet web site, shall not disclose on that web site any personally identifiable information about a student without receiving prior written consent from the student’s parent or guardian… .” N.J. Stat. Ann. sec. 18A:36-35 (2009)(emphasis added). Moreover, were such statutes to be used to enforce a blanket ban against student media, they would certainly be subject to a constitutional challenge. (The same would apply to any local or school district policies that may exist.) ))
Of course, policies limiting the use of names could have serious legal implications for student media and school districts. Every libel law primer begins with essentially the same advice: publish only complete and accurate information. By requiring the publication of misleading or incomplete information, a strong argument can be made that the policies prohibiting the use of full names or other identifiers like photos increase, not decrease, the odds that student media — and possibly the school district that created such a faulty system — will be subjected to libel or invasion of privacy lawsuits because of misidentifications created from the confusion. Such policies — which have been criticized by various journalism groups — also hurt an online publication’s reputation as a serious and credible news source.
The decision to publish or not publish
Even though there should generally be no across-the-board legal barriers to student media publishing minor names — in print or online — there are valid reasons for not doing so in some circumstances. For example, many news organizations do not, as a rule, publish the names of young people accused of less serious crimes. Some news organizations, for example, have adopted internal policies to not name minors unless they are charged adults. Children, the thinking goes, should not be stigmatized for the rest of their lives for an error in judgment they made while growing up.
The Poynter Institute’s Al Tompkins, who has written widely on media ethics, has created a useful list of questions and factors that student journalists may want to consider when deciding whether or not to identify juveniles, particularly those involved in criminal activities.((Tompkins, A., “Guidelines for Identifying Juveniles,” The Poynter Institute. Available online at: http://www.poynter.org. (Last viewed Jan. 24, 2020).))
Among them:
- Who is served by identifying the juvenile?
- How newsworthy is the story?
- What is the juvenile’s history?
- Would others be harmed if the minor was not named or if rumors were allowed to circulate unchecked?
The decision about when and how to identify young people involved in news stories can sometimes be tough. In the end, however, the decision should be an editorial and ethical choice — not one dictated by law.