Students' oral sex quotes land Wash. high school paper in legal trouble
High school journalism depends on minors consenting to interviews. In Claremont, Calif., a high school junior told the student newspaper she supported a new law banning cell phones while driving. A freshman at a Jewish day school in Rockville, Md., discussed morality and capital punishment with her student publication. And in Palo Alto, Calif., a student newspaper quoted a high school junior on his feelings about the constitutionality of same-sex marriage.
But when a 17-year-old girl in Puyallup, Wash., told members of her student newspaper staff about her oral sex experience, and they printed her name and statement, she cried foul.
The girl is among a group of four students and their parents who have filed claims against the Puyallup School District; three reporters from Emerald Ridge High School’s student newspaper, the JagWire; and two faculty members, contending they did not have permission to print the students’ testimonials about oral sex in the paper’s February issue.
Four pages of that issue were dedicated to the topic of oral sex, with stories ranging from a description of the hormones triggered in oral stimulation to counterpoint columns in which reporters discussed whether it is immoral to engage in the behavior. The students bringing claims shared their personal oral sex experiences in pull quotes displayed prominently in the package.
For example, one 18-year-old female senior ‘ who was also identified by name in the article ‘ said, “I was 15. I was horny. It wasn’t really a relationship at that point.”
Each of the student plaintiffs is seeking up to $1.5 million in damages for invasion of privacy, negligence, and intentional infliction of emotional distress, among other claims. But an official lawsuit has not yet been filed. Washington state law requires petitioners seeking legal action against any local government entity to file a claim outlining their case before they actually file the lawsuit in court.
The petitioners argue they expressly requested anonymity in the newspaper and were told by newspaper staff members their names would not be printed. But JagWire staffers told the Student Press Law Center they took extra care to make sure it was OK to publish names, even returning to each source to check wording for accuracy.
This case touches on an area of the law that is surprisingly underdeveloped, said Mike Hiestand, legal consultant to the SPLC. He said courts have never addressed consent by minors in student media, although they have addressed the issue in cases involving professional media outlets. The courts have recognized that a minor’s consent generally is valid if he or she is capable of understanding the consequences, even if parental consent is not obtained or parents expressly refuse. As long as the person has the legal capacity to give consent ‘ regardless of age ‘ courts have considered the consent adequate.
The U.S. Supreme Court set the foundation for this standard in 1979 in Smith v. Daily Mail Publishing Co. when it ruled that journalists can print minors’ names as long as the information is “lawfully obtained” and “truthfully” reported. Daily Mail had challenged a West Virginia statute, which criminalized publishing names of any youth charged as juvenile offenders without court approval, on behalf of two newspapers that were prosecuted for printing the name of a 14-year-old student alleged to have shot and killed a 15-year-old classmate.
The courts have determined minors’ privacy rights are analogous to adults’ when the subject matter is “newsworthy” ‘ meaning reporters do not necessarily need to get minors’ or their parents’ consent merely to report the story.
Hiestand advised that newspapers take extra care when the material is “sensitive.”
“When you have particularly private information or private stories, you need to be careful with everyone involved,” he said. The same ethical standards apply to professional and student media.
Hiestand said journalists should make sure their fellow students know they are speaking with a reporter and that the reporter is interviewing them for a story that will be published. They should remind sources that the publication may be read by students, parents, teachers and members of the community.
And when journalists are interviewing a minor, Hiestand said it is advisable to get consent in writing.
“It’s best to get these consents in writing because stories change,” he said. “They might have thought it was a good idea to talk to the newspaper about their sex lives in February, but when the paper comes out in May they might change their minds.”
It also never hurts to get parental consent, if possible, Hiestand said, though court rulings suggest such consent is not legally required.
Lauren Smith, a member of the JagWire’s editorial board, said a couple of students changed their minds about being quoted even before the issue went to print. The staff respected a girl’s wish to retract her comments and altered a boy’s quote a couple of days before publication at his request.
Gerry LeConte, also an editorial board member, said they considered eliminating names altogether but feared losing the message they wanted to convey in the first place. The newspaper conducted a poll that found one in three students had participated in oral sex, but the district’s sex education curriculum did not address the topic.
“People think the design and the quotes were just to be sensationalistic, and that’s not what they were for. They were so parents couldn’t say, ‘That’s not my kid,’ “ LeConte told the SPLC. “If you put a pull quote that says one in three kids is having oral sex, many, many, many parents will say ‘Well, that’s the bad one third of the students. That’s not my kids.’ And that’s just not the issue.”
No administrators at Emerald Ridge High School were available to speak with the SPLC. One parent bringing a claim said all families had been advised not to comment.
Their attorney, John R. Connelly, Jr., said the students did not know their names would be printed and did not understand the consequences of sharing their oral sex experiences with the paper.
“The concern that I’ve got is that you’re publishing very private information, and it’s the type of information that if someone wrote it up on a bathroom wall, the school would hurry to erase it and make sure it was taken down,” he said. “And in this case, they put it in a newspaper.”
Kathy Schrier, past-president of the Washington Journalism Education Association, said it was her understanding that the students at the JagWire took sufficient precautions before printing the students’ names. In any case, she said she did not think there was anything illegal about a student newspaper quoting an underage student who knew he or she was on the record. It would be devastating for journalism if minors could not talk openly with reporters, Schrier said.
“I think it’s hard to imagine that could ever happen, but it is a slippery slope, so when things like this happen at the JagWire, and that’s the direction things seem to turn in, it makes me pretty nervous,” she said. “It would put a real chilling effect on the reporters’ possibility of getting a full story if something like that would happen.”
Fall 2008, reports