One of the most common excuses school administrators employ to justify censorship of student publications is that in order to protect the school from liability for articles that are libelous, invade privacy or are otherwise illegal, they need to closely supervise the actions of the students. But this excuse makes little legal sense, as a growing body of law indicates that censorship is more likely to create, rather than counteract, a school's potential for liability.
In reality, the best advice for most schools that want to protect their pocketbooks and stay out of court is to refrain from editorial decision-making and content control of student publications.
The general theory of legal liability is that any person who could have and should have prevented an injury can be held responsible for it. Thus, in order to not be held liable, a school should not put itself in a position where it could have or should have prevented an injury. This general liability principle is applicable to any context, but the specifics of liability for the actions of the student media will depend on the type of school involved -- whether it is a college or a high school, whether it is public or private -- because courts may afford different protection to each.
While libel suits against college publications are relatively rare, college administrators may still be concerned about their potential for liability. Libel plaintiffs would like to make the school responsible for the actions of the student media in order to reach the "deep pockets" of the school for paying damage awards.
The positive news for administrators is that courts have consistently said you cannot hold a public college liable for the acts of its student publications as long as the school is not censoring or exercising some other form of content control. The First Amendment does not permit public colleges to exercise the type of control necessary to be held liable. Thus, as long as a school follows the constraints of the First Amendment, it should be protected from liability.
Those who have sued public colleges for the actions of their student media have attempted several theories of liability; however, none of these theories has been successful.
The first theory is vicarious liability, or respondeat superior. In an agency relationship, one party acts as "principal" and the other as "agent." The principal has the right to control the agent in the performance of his duties. Thus, the principal is vicariously liable for the actions of its agent. Applying this relationship to a public college and its student publications simply does not work. A public university is constitutionally prohibited from exercising content control, court decisions indicate.
Thus if a public college uses censoring a student newspaper as a justification for protecting itself from liability, the school is setting itself up for two potential lawsuits: a First Amendment infringement claim by student editors as well as any libel or invasion of privacy suits.
A vicarious liability claim was rejected in Mazart v. New York,1 a case involving an allegedly libelous letter printed in the State University of New York at Binghamton student newspaper. The New York Court of Claims ruled that a public university was unable to control the content of its student publications because of the First Amendment; therefore, no agency relationship could be established.
Further, the court held that funding provided by the school did not establish an agency relationship. In Mazart, the university partially funded the newspaper through a student activities fee and provided office space, desks and janitorial services at no cost to the newspaper. Students could also receive school credit for work on the newspaper.
None of these factors were sufficient, however, "to overcome the university's lack of control over the newspaper.... Such accoutrements are nothing more than a form of financial aid to the newspaper which cannot be traded off in return for editorial control. 2
The reasoning of Mazart was more recently reaffirmed in a case against Clemson University in South Carolina.3 The university was not held responsible for an allegedly defamatory article printed in its student newspaper because the paper was not subject to prior review by the university.
The court stated that "[t]here is overwhelming authority across the country in support of the position that a public university which does not censor or otherwise control the content of a school-sponsored newspaper is not liable for what is published by the students in the student-run newspaper." 4
A similar ruling rejecting the agency theory of liability was issued by the Appellate Division of the New York Supreme Court in McEvaddy v. City University of New York.5 As in Mazart, the fact that the university provided the newspaper with a faculty adviser and funding was irrelevant in the eyes of the court; the university could not exercise control over the newspaper that would justify liability.
Libel plaintiffs have also attempted to argue that the university is the publisher of a student publication and thus is liable for its actions as a commercial publisher would be. However, as one federal appellate court noted, "[t]he university is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned." 6
The university as publisher analogy was advanced in a 1983 Louisiana case against the student newspaper at Southern University of New Orleans. 7 The court held that because the First Amendment bars state universities from exercising anything but advisory control over student publications, the university could not be held liable for defamatory articles printed in the paper.8
The issue of vicarious liability was recently confronted by a Minnesota state appellate court when a professor sued St. Cloud University for an allegedly defamatory article published in the student newspaper. 9 The court acknowledged the "plethora of connections"10 between the student newspaper and the university, which the professor pointed out, but rejected his claim that the university could be held liable based on either a "university as publisher" or agency theory. Of particular relevance to the Minnesota court in shielding the university from liability was a university system policy that prohibited school officials from exercising any control over student-funded publications.11
Another possible theory for university liability is negligence. To prevail, the person bringing suit would have to establish that the university had a duty to exercise due care to protect the individual and failed to exercise that care.
This theory was also advanced by the plaintiffs in Mazart, but the court rejected it. The court explained that college students are legally adults, not children; therefore, the university had no duty to provide students with editing guidelines because as adults, they were presumed to already know the guidelines.12 Since there was no duty, there could be no negligence on the part of the university.
In summary, because public colleges lack the critical requirement of the ability to control content because of First Amendment prohibitions, those schools should not be held liable for the actions of the student media.
However, if school officials do ignore the First Amendment and engage in censorship or require prior review of content by an adviser or administrator, protection from liability would be lost. A public university that wants protection must allow editorial independence for student media.
The situation may be different at private universities and high schools. While a school policy, state constitution or state law may offer some free expression protection, the First Amendment does not prohibit private schools from censoring or regulating the content of their student publications.
For example, the vicarious liability theory may be successful in the context of a private school. Where it is presumed that the school has the ability to regulate content, there are three major elements needed to demonstrate the existence of an agency relationship.
First, consent must be given to the agent newspaper to act on behalf of the principal university. The necessary consent may be evident in the university's establishment and funding of a student newspaper. 13 Next, the university must be shown to benefit from the presence of the newspaper. Finally, student editors must be acting within their granted scope of authority when they select content for publication.14 If these factors can be met, it would be possible for a private university to be found liable under a vicarious liability theory.
That assumption was recently challenged in a case involving Princeton University, where a court, for the first time, said a private university was protected from liability for material published by a student newspaper. 15 The potential significance of this case is unclear, however, because unlike most student publications, The Daily Princetonian is an independent, separately incorporated newspaper. The court never noted that fact in its decision, so it is difficult to determine how this holding might shield other private universities from liability for student publications that are not so independent.
The analogy to the private university as publisher might also be successful for school-sponsored publications. There is no First Amendment bar to a private university exercising prior review or censorship, so there may be greater authority for the school to control the newspaper, which translates into greater potential for liability.
This argument was advanced in a case against the University of Rochester, where the court expressly stated that a private school is not limited by the First Amendment like a public school. 16 While the case was ultimately settled out of court, the decision suggests the burden would be on the university to demonstrate that it had no power to exercise control over the newspaper. In some places, state law limiting censorship of expression by non-government agencies could provide this protection.
Because private schools are not constitutionally prohibited from controlling the content of student media, their potential for liability will likely depend on the amount of control they choose to exercise. Private schools can still take steps to limit their potential for legal liability that avoid a need to censor.
The best way for a private school to protect itself is to limit its direct interference with content decisions. If a private school adopts a written policy that prevents school officials from exercising content control over student publications, the policy might work to protect the school from liability. The school should draft a strong and clear statement affirming the rights of student editors to make all content decisions and assume all responsibility for student media. If faced with a suit, the school could then point to the policy and argue that the student journalists are not like employees in an agency relationship, but more like independent contractors exempt from vicarious liability theory.
Other precautions that can be taken to limit potential liability include: printing a disclaimer in every edition emphasizing the paper's separate operation from the university and stating that all views expressed are not necessarily those of the university; administering funds separately from those of the university in a separate bank account; obtaining libel insurance; or becoming separately incorporated like in the Princeton case.
Above all, students and administrators at private schools should learn the law and employ good journalism and ethics. The more the school refrains from interfering with content decisions made by student publication staffs, the more likely it will remain free from liability.
After the Supreme Court's decision in Hazelwood School District. v. Kuhlmeier,17 public high schools have greater authority to legally exercise control over many school-sponsored student publications. However, those schools that censor probably put themselves at a greater risk of legal liability. If public schools establish written policies similar to those recommended for private schools, the schools are more likely to be shielded from liability.
Additionally, California, Massachusetts, Iowa, Colorado, Kansas, Arkansas, Oregon, and Pennsylvania, have adopted laws or administrative agency regulations that limit the amount of control school officials have over the content of their student media. 18 Like public college administrators, officials at schools in these states are legally prohibited from interfering with editorial content except in narrow circumstances specified by law. In such cases -- again, just like at a public college -- it will be more difficult to show that student journalists act as "agents" for the school so as to justify imposing institutional liability.19 The issue is clearer in Massachusetts, Iowa, Kansas, and Colorado, where the states' laws explicitly limit liability of school officials for material printed in student publications unless the school has interfered with content decisions of student editors.
High school administrators in particular may attempt to use the potential for liability as an excuse to control content, but that justification is not supported by court decisions. Despite the millions (perhaps billions) of pages published by American student newspapers, yearbooks, literary magazines and other student media over the last century-plus, the Student Press Law Center is aware of no reported court decision where a high school has been found liable for the content of its student media. The best protection a school can take is not to censor but to hire competent publication advisers who can teach students about their legal responsibilities and to distance itself as much as possible from the content decisions made by student editors.
Another route that some newspapers have taken to protect themselves against paying damages in a lawsuit is to obtain libel insurance. Even a value-priced policy can be an expensive undertaking for cash-strapped student media, so often only publications with large circulations and substantial assets will consider purchasing insurance.
In choosing an insurance plan, there are several things publication should consider. One of the most important is who decides on retractions or corrections. Many editors believe that the newspaper itself, not the insurance company's lawyer, should make that type of decision.
Other factors to consider include: whether to buy errors and omissions coverage, whether there are discounts for no losses in a five-year period, whether the policy covers intentional or malicious acts, whether the insurers will pay attorney's fees in addition to the policy limit on judgment costs, and whether the policy covers punitive damages.
Probably the largest factor affecting the cost of an insurance policy is circulation. Another important factor may be location. Colleges in Philadelphia, for example, may have to endure higher than average insurance premiums because Philadelphia is an area where courts have been unfavorable to libel defendants.
Another factor is whether the newspaper has been involved in past lawsuits. If the paper has been sued in the past, it will likely have higher than average premiums or deductibles. Insurers may also examine the newspaper's procedures on topics such as dealing with letters to the editor and verifying sources. Finally, some companies provide lower insurance rates to newspapers that have faculty advisers.
If you are interested in exploring the possibility of libel insurance for your publication, contact a local insurance agent. The Student Press Law Center also maintains a list of companies that have offered libel insurance to student media.
Although it does depend mainly on circulation, libel insurance may be a costly proposition and out of reach for many schools. Additionally, some believe it may invite lawsuits that would otherwise not be filed against poor students. But, for those that can afford insurance, it is a protection worth looking into. The question of legal responsibility ultimately turns on who has control over the printed material. The general test is that when a school exercises control over the content of the paper, it takes on a greatly increased potential for liability. Schools should then not employ the misguided excuse that content review of a paper will reduce the likelihood of liability. Obviously the best protection against being sued is to engage in careful, accurate reporting. Everyone involved, from the administrators to the student journalists, wants to avoid liability. The first step in doing so is promoting awareness of the law and the legal constraints that apply to student media.