Coverage of a college football game rarely leads to newspaper thefts, criticism of editorial judgement and the removal of an adviser. Then again, newspapers rarely publish a front-page photograph of a naked man sprinting across the field.
When a streaker dashed across the field at a Pirates football game at East Carolina University in 2011, student editors at the East Carolinian took advantage of the opportunity. The student newspaper chose to run a front page, uncensored photograph of the incident, prompting outcry from readers, who stole several hundred copies of the print edition and denounced the staff’s editorial judgment online.
Over this one image, the newspaper’s adviser, Paul Isom, lost his job.
Each school year, student newspaper staffs publish nude images. While some argue the images accurately convey a newsworthy event, others are published to be edgy, like at the University of Buffalo, where the student newspaper’s annual sex issue features articles about sexual health and related topics. Often accompanying the articles are sexually explicit images some people argue are unsettling to see in a newspaper.
Beyond reader reactions, newspaper associations and free speech activists argue new state laws to combat revenge pornography could criminalize the distribution and publication of nude images that convey a newsworthy event.
When nude is good
News organizations, both collegiate and professional, generally run into editorial policies before they face legal concerns when they publish nude images that critics claim are obscene, attorney Robert Corn-Revere said.
“The standard for obscenity requires more than just the depiction of nudity or even a depiction of sex,” he said.
For an image to be considered obscene, it must pass a few tests the Supreme Court set in the 1973 case Miller v. California: it must be offensive by contemporary standards, depict sexual conduct in an offensive way as applicable to state laws and it must lack any serious, literary, artistic, political or scientific value.
“Any work to be considered obscene has to meet all of those aspects to the test,” Corn-Revere said. “A still image of even someone engaged in sex is unlikely to be considered obscene.”
Even though it would be difficult to argue an image published in a newspaper meets the requirements of the obscenity test, Corn-Revere said it would likely “raise more of a controversy” if a newspaper published nude images “for no particular reason, if it were not connected to some actual newsworthy event.”
Along with considering the news value of the image and the audience, reporters and editors should balance the benefit and harm of sharing the image, said Andrew Seaman, chair of the Ethics Committee for the Society of Professional Journalists.
“Does that have to make a point if there’s going to be people that are offended?” he said. “Could there be any harm that comes of that? Will children see the picture? Things like that.”
In 1972, Nick Ut captured the Pulitzer Prize-winning “Napalm Girl” photograph from the Vietnam War, which showed a young Vietnamese girl running from a napalm attack that “melted off” her clothing. The image, Seaman said, was published because of its news value that tried to “bring home the realities of what’s happening in a place that people on the receiving end probably can’t fathom.”
“The benefit of informing the public about what is going on in this far away place would outweigh any sort of damage than actually showing that image would,” he said.
Isom, the fired newspaper adviser who now works at North Carolina State University as a journalism professor, said the audience must be considered before publishing nude images.
“I’ve had students who used bad language, the F-word in stories, not just for the fun of it but because they felt like it was important to express the severity of the statement that was made in the context that it was made,” he said. “And again, it’s a college newspaper. Because of your audience, you can do that just like you could do that in the Rolling Stone because your audience is different.”
But in the end, student journalists should be able to defend their decision to publish any kind of image, not just ones that could cause controversy. Seaman said it helps to take a moment to stop and think if it’s worth running.
“That’s probably the best thing that you can do,” he said, “so don’t be afraid to actually sort of take a breath before you hit publish or send the PDFs off to someone or broadcast it.”
Threat of revenge porn and self censorship
In 2004, New Jersey became the first state to pass a law to combat revenge porn, which criminalizes the distribution of nude or sexually explicit images of a person without their consent. Thirteen states passed similar revenge porn legislation in 2013.
Revenge porn laws are meant to punish people like Noe Iniguez, a Los Angeles man who in December was the first person to be convicted under California’s revenge porn laws for publishing topless photos of his ex-girlfriend, Mashable reported.
But the broad language that accompanies many of the laws could have unintended consequences to free speech, said Lee Rowland, a staff attorney at the American Civil Liberties Union, which has been tracking this legislation since 2013.
“The laws were drafted very broadly without really narrowly focusing in on the malicious and harmful conduct that is commonly understood as revenge porn, and the consequence of that broad language was that many of these laws, whether intentionally or otherwise, criminalize the sharing of protected speech,” Rowland said. “So they didn’t focus in on malicious invasions of privacy, but rather placed broad restraints on the sharing of nudity, and that’s fully protected by the First Amendment.”
Arizona’s revenge porn legislation, for instance, was so broadly written that it criminalizes sharing or publishing any image with nudity in it without consent of the subject, Rowland said.
Publishing newsworthy images — in a newspaper, book or in any other form of distribution — such as the “Napalm Girl,” the naked prisoners at Abu Ghraib and even former U.S. Rep. Anthony Weiner’s indecent photos of himself that he sent to women, could be in violation of Arizona’s law because those subjects have not explicitly given their consent for the image to be published, Rowland said.
The ACLU, other First Amendment organizations, news publishing companies and bookstores filed suit against the State of Arizona in September 2014 because of the potential harm the law could cause. In November 2014, a federal judge put a temporary block on the law to give legislators time to work on changes to the law.
Mary Anne Frank, an associate law professor at the University of Miami, works with legislators across the nation to develop revenge porn legislation that tackles the issue with specific, narrower and less broad language.
“The challenge for legislators, and I’ve been helping legislators draft some of their legislation, is to try to think of as many scenarios as possible so that we can write well-crafted, narrow laws to avoid as many of those unintended consequences as possible,” she said, and added that there’s “always going to be some room for review.”
And while some of these laws in their current state could pose a threat to the rights of the press, Rowland said no such incident has occurred to her knowledge. But, she said, the threat alone could prompt self censorship.
“No one should have to wonder whether or not they’re going to receive a felony record,” Rowland said.
For student media, the risk of prosecution under a statute intended to criminalize revenge porn would be greatest in a situation such as the East Carolina streaking case, where a person’s public nudity becomes part of a newsworthy story. These laws should have no application to a typical sex-themed issue of a campus newspaper in which models have given consent to be shown unclothed.
Hannah Cleveland, editor-in-chief of Clemson University’s student newspaper, The Tiger, said she often worries about whether she should publish a newsworthy image although the subject is controversial. In October, The Tiger’s staff released its first sex issue since 2008, which covered a variety of content on sexual health, diversity and entertainment.
“I feel like we did a good job of making it tasteful while still being attractive for people to pick up, but some people disagreed,” said Cleveland, who was the associate editor at the time the sex issue hit stands. “They felt like we were maybe pushing the line a little bit too much having essentially fully nude people on our front cover, but in the end it turned out great.”
As long as she and her colleagues can justify their decision to run with an image, then it’s worth it.
For Cleveland, it’s important as a team of college journalists to “be bold” when publishing content.
“Just push the limits and stretch yourself, and do try to approach these kinds of issues that may make some people uncomfortable, because what is a newspaper that’s not a vehicle for conversation?” she said. “We’re supposed to be the people who can lead these discussions and get people people to talk about things, so just do what you have to do to make that happen.”