FAQ: SPLC's legal geniuses answer the most asked questions





Libel

Does including "in my opinion" protect me from a libel or defamation suit? Including the phrase "In my opinion" (for example, "In my opinion the principal illegally used school buses for a family vacation") does not create an automatic shield to libel. Neither does simply reprinting what someone else has said. (For example, "'The principal used school buses for a family vacation,' said John Doe.")

Advertising

Can student media refuse to publish a lawful advertisement? Yes, as long as students ' and students alone ' are responsible for rejecting the ad. Where public school officials, including an adviser, play a role in refusing the ad, the law can get a bit murky since they are government officials subject to the First Amendment. But students are private individuals and can accept or reject ads for virtually any reason. Student media at private schools are not subject to First Amendment restrictions and can generally accept or reject advertisements.

Are student media responsible for the content of classified ads? Print-based student media ' and specifically the editor-in-chief and media staff directly involved with the ad ' are responsible for all advertising that appears in their publication regardless of whether they created it. The original author of the piece is also responsible, but once print media publish content, they are on the hook if the ad is defamatory or invades privacy.

Can we use an ad from a store or restaurant that sells alcohol? Generally, you have the right to publish only accurate, non-misleading ads that promote lawful goods and services. Since most high school readers are not of legal drinking age, you may have a hard time arguing that your ad is protected speech. But surveys have shown that most readers of college student media are over 21, for whom drinking is a lawful activity. Informing them of drink specials or advertising a sale on beer should be fully protected. A handful of states have regulations that may establish roadblocks for alcohol ads in college media, but they are gradually being challenged in court. There is no problem for either college or high school student media to publish an ad for a store or restaurant that happens to sell alcohol where the ad makes no reference to alcohol.

Advertising

Is my newspaper legally responsible for online comments? Generally no. The Safe Harbor of the Communications Decency Act says that no provider of a Web site is responsible for text provided by a non-staff user, except in cases of copyright infringement. There's a separate safe harbor provision in the Digital Millennium Copyright Act that requires you to fill out a form and pay a one-time fee with the Copyright Office, but if you do that, text in comments posted by members of the public shouldn't create any liability for the publication. Remember, though, that information posted by staff members wouldn't fall under the safe harbor.

Access

Do I have to give a reason for asking for information under a Freedom of Information request? Generally, you do not have to disclose your purpose for requesting public records.

Can I, as a student reporter, violate Family Educational Rights and Privacy Act (FERPA)? Where it applies, the federal Family Educational Rights and Privacy Act (FERPA) restricts only school officials or those acting as an "agent" for the school ' not student journalists ' from disclosing information about students without student (or parental, if the student is a minor) consent. Student journalists are not school employees or agents of the school and are not subject to FERPA's restrictions.

I am a student journalist at a private school, can I use Freedom of Information laws? Absolutely! You can submit requests to obtain information from public agencies. However, because your school is private, it will likely not be subject to your state's FOI laws, and you'll need to look elsewhere for information about it or school administrators. While your school may not be required to hand over records about its cafeteria inspection, the government agency that conducted the inspection will have to release the report. Also, there are "pockets" of both state and federal law that require the disclosure of reports or documents compiled by private schools.

Newspaper theft

What should we do if someone steals our free newspapers? While the evidence is still warm, gather information about the theft. Determine how many copies were taken. Where were they taken? Were there witnesses or cameras? Is there information regarding the thieves' motives? If you have reason to believe thefts may still be occurring, dispatch a photographer to take pictures. As soon as you have established basic information, contact campus and/or local law enforcement officials to file a formal police report and to ask for assistance in tracking down the thieves. If you need help convincing them that the theft of "free" newspapers is, in fact, a crime, the Student Press Law Center has collected documents from successful prosecutions of newspaper thieves on our Web site.

High school censorship

Does Hazelwood mean my principal can prior review my school newspaper? This is a difficult question to answer because Hazelwood and prior review aren't directly related. Prior review means only looking at the newspaper before it is published. In most cases, a school has the right to institute prior review, except where it is doing so in retaliation for content that was previously published, or, in some states, where the newspaper is totally independent. But Hazelwood really talks about when a school can engage in prior restraint ' that is, when the school can actually remove content from the newspaper. Answer: only if the school has a legitimate educational reason.

College censorship

Student Government just cut the paper's budget in half. Isn't that a First Amendment violation? It depends. First question: Is student government even a "state actor" subject to the First Amendment?Luckily, most courts say yes ' especially when its role is allocating student fee dollars. Second: is the newspaper taking a hit because of its editorial content? The state can't penalize editors' content decisions by denying student activity fee support (at least, as long as the content is legal). Budget decisionmakers often hide behind the pretext of "quality," but if "quality" is a smokescreen for punishing the publication's viewpoint, that's unlawful. One key that courts will look for: Did the publication take a hit grossly out of whack with comparable student organizations?

Campus crime

What police records can I make my college give me? At a public college, the answer is easy: Your state open records act almost surely makes "incident reports" a matter of public record (and police can't redact names just because the suspects or victims are students). At a private college, you might still get the benefit of the open-records act if (like at Yale University) your police department is acting as an arm of the local government. But at any campus, you can at least demand the "Clery Act log," a factual summary of all serious crimes that must be kept current within the last 48 hours.

Privacy Invasion

Do I need written permission to use a photo or a name of a minor? Not if it's for news purposes, though written permission doesn't hurt. You need permission from the copyright holder if you didn't take the photo, of course, and you need written permission if you want to use the name or photo for advertising purposes. But the Supreme Court has said that it's legal to print the name of a minor when the name is "lawfully obtained" and "truthfully reported."

Can I publish a minor's name online? Yes. Despite rumors to the contrary, having your name posted online doesn't typically lead to horrifying consequences, and there isn't a law designed to avoid the nonexistent consequences.

Do I have to ask permission to tape record a conversation? A meeting? It depends on state law. Check out "Can We Tape?" from the Reporters Committee for Freedom of the Press, online at http://www.rcfp.org/taping/index.html.

Broadcast

Can I use music or videos in our student broadcast or podcast? It depends on how/why you are using it. As a general rule, if you didn't create the music yourself, you must obtain permission from the copyright owner to use the music in any way. Contrary to popular myth, there is no "30-second" or "200-word" exception that allows you to use a set amount of copyrighted material without permission. This includes the use of background music. The only true exception to the rule is

"fair use." The Fair Use exception allows for the limited use of copyrighted material without permission when engaged in bona fide news reporting, commentary or critique, or in-class educational instruction. For example, a review of a CD on your TV news program could be accompanied by a short clip from a music video.

Copyright

Can I use a picture from the Internet, Facebook or MySpace in the newspaper or yearbook? Sometimes, but not usually, and you need to do some research to figure out whether or not you can. There are two primary areas of the law you need to worry about: copyright and privacy. From the copyright perspective, you need to be making a fair use of the work, or you need permission from the owner.Check the SPLC Web site to read up on these topics ' they're too long to do justice to here ' but as a general rule, unless you know who owns the image and how they're using it, you can't make a fair use. In other words, Google image search will almost never provide a useful result.

Can I use a picture from the internet if I credit where it came from? This is a common misconception. As much as journalism cares about crediting images, the law really doesn't. Nothing in copyright law will give you any greater right to use an image just because you credited it. It's nice to credit it correctly, but it's not something copyright law has any interest in, at least as far as publications are concerned.

Can we use titles like "Days of Our Lives" as themes or headlines in the yearbook? You can use the words, but using the words along with images from the work you're referencing could be a copyright problem. The reason is that, while a title itself is not protected by copyright, associating the title with images related to the theme of the underlying work can serve to make the yearbook appear as a derivative work, and only a copyright holder can lawfully make or authorize a derivative work. So "Days of Our Lives" as a headline is fine ' but if you combine it with images of an hourglass and drawings of actresses with big hair staring at strong-jawed actors, you might be in trouble.

Confidentiality

Can my principal or university president force me to turn over confidential information? Probably not, though there's not a lot of precedent. At a public institution, there's no legal authority for an administrator to compel an individual to disclose a confidential source. The administrator would have to seek a court order. At a private school (outside of California), the school is bound only by the promises it has made, and probably could throw someone out for refusing to turn over a source unless the school has its own rule to the contrary.

Do shield laws protect student journalists? That's also a state-by-state question and one that's evolving all the time. For what it's worth, the important thing is to be clear with your sources how far you're willing to go to protect their identity.

Advisers

Should I know who my students' confidential sources are in a story? This is a case where ignorance really is bliss.The safest course is to agree in advance that students will not disclose confidential sources even to the adviser, who may be pressured under threat of firing to disclose the source to her supervisor. Unlike the reporters and editors, the adviser likely cannot invoke the protection of a newsgatherer'sshield privilege. (And students should never leave identifying information about the source on school premises or on a school computer, where it can readily be discovered.)

What if I'm ordered to censor my students illegally?Unless you live in Kansas or California, which have state anti-retaliation laws, you could put your job on the line if you disobey a direct order ' even one you suspect is illegal. If you can't finesse your way around the situation, and if you want to stay employed, you may have no choice but to comply with the order ' but for your own protection, try to get the order in writing and put on record that you disagree with it, in case you find yourself named in your students' lawsuit.

Doesn't the First Amendment protect me if I blow the whistle on illegal censorship? Probably not. The Supreme Court has said public employees have no protected right to complain about anything touching on their own working conditions, and a journalism adviser complaining about how administrators run the journalism program almost surely would fall outside the First Amendment today. This is why the responsibility for opposing censorship ultimately restswith the students, not the adviser.


reports, Spring 2009