A persistent misperception that hampers journalists’ ability to do their jobs – one that many journalists themselves share – is that it’s against the law to publish images and information about minors without parental consent.
One of the sources of this myth is journalists’ own practice of voluntarily concealing the identities of child subjects. Television reports about school events typically are accompanied by faceless footage of backpacks and sneakers, and news organizations generally withhold the names of juveniles accused of crimes.
These voluntary ethical standards are just that – voluntary – and there is in fact no penalty on media organizations for disclosing lawfully obtained information about minors. In fact, the Supreme Court has said just the opposite – that a state law penalizing the media for disseminating information about juveniles is an unconstitutional prior restraint. (Nor can a parent whose child’s face shows up in a news broadcast sue for invasion of privacy just because of the subject’s age.)
While it is true that many states restrict public access to the records and proceedings of juvenile court cases, there is no blanket prohibition on gathering and using information about the juvenile justice system.
Mississippi’s WDAM-TV recently put this legal principle to the test, when an inside source leaked the NBC affiliate two hours of videotape shot by surveillance cameras in a Forrest County, Miss., juvenile detention facility.
To the journalists and to their whistle-blower source, the footage appeared to show guards using excessive force to punish minor acts of misbehavior (e.g., beating a teenager for throwing a glass of milk on the floor). The station wanted to rush the videotape onto the air.
But the state, relying on a Mississippi statute that makes information about juvenile detainees confidential, took the unusual step of getting a judge to issue an order restraining distribution of the tape. The station appealed, arguing that the confidentiality law regulated only state employees’ release of the information, not distribution by private third parties – and certainly not by the news media.
In this month’s SPLC podcast, attorney Enrique Armijo, part of WDAM’s legal team at Covington & Burling LLP, tells the story-behind-the-story of how the case was fought and won. It’s a fascinating issue legally and journalistically, and worth a listen as a reminder of how powerfully the First Amendment disfavors prior restraints.