Every week, Student Press Law Center attorneys answer a frequently asked question about student media law in “Ask SPLC.”
Q: As students and teachers return to school during the COVID19 pandemic, can we take and publish news photos of students/teachers — masked or unmasked — walking in a crowded school hallway?
A: Yes. It is long-established law that public school students have the right to engage in speech activities in school as long as their speech is lawful and non-disruptive. A photo such as this one, taken by a student at a public high school in Georgia this month and published widely over the Internet, is entirely lawful despite claims that it invaded student privacy. Students have no reasonable expectation of privacy while walking in a crowded school hallway and are generally fair game for student journalists. The same would be true for news photos taken in other clearly “public” areas of the school such as in a crowded lunchroom, gymnasiums or football fields during athletic events and most outdoor areas such as a student parking lot or school bus pickup area. Taking photos in private spaces (locker rooms, bathrooms, private offices, etc.) should not be done without prior permission from everyone who might be in the photo. Classrooms exist in a bit of gray zone and, except in cases where the photo is exceptionally newsworthy and obtaining prior consent cannot be reasonably accomplished in a timely manner, it is the SPLC’s recommendation that you generally err on the side of caution and obtain permission.
Another excuse you might hear from school officials trying to justify a ban or censorship of such news photos is FERPA, the Family Educational Rights and Privacy Act. Student journalists are neither employees nor agents of the school and unlike teachers and other school officials are not subject to the limitations imposed by that federal law.
Finally, the issue of students returning to school during Fall 2020 — as the COVID19 pandemic continues mostly unabated in the U.S. — is highly newsworthy, a key defense to any invasion of privacy claim. While a school may attempt to enforce an existing school rule banning such photos, as long as you take them in in a lawful and non-disruptive manner, such a ban would be on legally thin ice, particularly for student media charged with covering school-related news. (To provide extra cover, students that do not work with student media may want to wait until they are off-campus, using their own equipment and social media accounts, to share their stories.) The Student Press Law Center encourages student journalists who are censored or threatened with punishment for documenting Back-to-School activities to contact our legal hotline.
Legal questions should be directed toward SPLC’s legal hotline. Ask SPLC questions will be selected based on trends in the legal hotline. The legal hotline is confidential and no identifying information will be used in the Ask SPLC segment.