Good high school journalists take seriously the obligation to cover their peers in meaningful ways. As student publications struggle to provide both a voice for other students and serve as a watchdog of student misbehavior, many reporters and editors are facing challenges when it comes to telling student stories that some would rather not be told. A growing number of young journalists are being asked by school administrators to leave out of information that identifies individual students. And many, questioning the wisdom and legality of these restrictions, have begun to ask why.
In a unanimous 1979 decision, the U.S. Supreme Court ruled in Smith v. Daily Mail that the First Amendment protects the right of journalists to use the names of minors in newsworthy stories as long as the information is "lawfully obtained" and "truthfully" reported.1 In that case, the Court struck down a West Virginia law that had been used to prosecute two West Virginia newspapers that printed the name of a 14-year- old junior high school student alleged to have shot and killed a 15-year-old classmate.
Following the Daily Mail ruling, other courts have, for example, ruled that newspapers can publish the name of a minor charged with unauthorized use of a motor vehicle and hit-and-run driving,2 the name of a juvenile who was kidnapped and sexually assaulted,3 the name of a high school student viciously attacked by his classmates at school,4 the name and photograph of a 12-year-old who was charged with the attempted murder of a police officer,5 the names of juveniles who testified in a trial in which the adult defendants were charged with supplying alcohol to minors,6 the photograph of a minor child taken while in the arms of her mother on the courthouse steps following a much-publicized paternity hearing7 and the name and course of mental health treatment of an individual convicted of sexual assault when he was 14, but who was no longer a minor at the time of publication.8
Even where a court proceeding or government record can be lawfully closed by government officials, courts have generally said that the government may not restrict the press from publishing newsworthy information from such records or proceedings — including minor names — when such information has been lawfully obtained through other means.9 However, where a reporter voluntarily makes an agreement ahead of time that allows them to obtain access to information that would otherwise be off-limits, that agreement must generally be honored.
For example, in most states juvenile court proceedings and records can be closed to the public. Some states also allow judges to close down the portions of adult trials that require juvenile testimony or evidence. In such cases, the decision of whether to allow access is often left to the discretion of a judge.
As a result, judges have occasionally placed conditions on reporters' access to otherwise closed juvenile proceedings by allowing reporters in — but only after they have promised not to disclose certain information about minor participants that might be revealed during the proceeding. Such conditions are probably valid.10
But even in such cases, the power of judges to restrict press coverage is limited. For example, a California appellate court struck down an order that prohibited reporters admitted to a juvenile custody proceeding from revealing virtually any information about the minors involved, including a ban on interviewing the minors without an attorney present, interviewing their caretakers with the minors present, interviewing any mental health professional to whom the minors had been referred or "doing any act in the future that might interfere with reunification or have a negative impact upon the providing of reunification services."
While the media could have been denied access to the proceeding altogether, the appeals court said, it was beyond the juvenile court's power to restrict the press' right to investigate and publish information it had lawfully obtained outside of the courtroom.11
Despite the Supreme Court's clear ruling in Daily Mail and the lower court cases that have followed, the misconception that juvenile names are strictly "off-limits" persists. Student journalists continue to battle — and educate — school officials over their right to publish student names or other identifying information as part of their regular news coverage. This seems to be particularly true when students seek to publish "student information" (information about student grades, discipline, etc.) or when they publish online.
Of course, the same invasion of privacy rules that limit the publication of identifying information about adults in certain situations apply to information about minors as well.12 But these limitations are based on restrictions that apply to all, not just minors.
Many school officials — predominately at the high school level — have become particularly squeamish about allowing student journalists to publish information about their classmates. In some cases they have even required parents to sign consent forms before their child's name or photo can be published in student-edited media. In rare instances they have simply banned the use of student names or photos entirely. Often, they justify their censorship or restrictions by pointing to a federal law known as the Family Educational Rights and Privacy Act, also sometimes called the Buckley Amendment.13 While their intentions in such cases is usually not sinister, their interpretation of the law is misguided.
FERPA was enacted in 1974 after Congress found that some school officials were mishandling student records. The law has two parts. First, the law requires that students and parents be given access to the students' own school records. Second — and this is the provision that causes most of the confusion — FERPA penalizes schools that indiscriminately release certain student "education records" to third parties.
Where the policies directed at student media miss the mark is that FERPA only restricts the release of information by school officials or those acting for them. Outside parties — including student reporters, who are neither state actors, employees nor agents of the school14 — are not restricted by the law. Unfortunately, school and government officials sometimes do not understand — or simply choose to ignore — this distinction.
While it is entirely appropriate, for example, that school districts create a policy regarding a principal's disclosure of protected student information to a student reporter (or anyone else) during an interview, it is wrong for the school to impose the same limitations on student-edited media, prohibiting them from disclosing to their readers accurate information lawfully obtained by student journalists during the newsgathering process. Despite the claims of some school officials, any policy that imposed such a flat ban on the publication of accurate, newsworthy and lawfully obtained information by student-edited media would almost certainly be unconstitutional.15
For example, in the only published court decision to address the issue, a New York federal court refused to extend FERPA to cover the release of student information published in a high school student newspaper, ruling "the prohibitions of the amendment cannot be deemed to extend to information which is derived from a source independent of school records." 6
Requiring student media to limit news coverage to "approved" students destroys the student media's reputation as a credible source of news. It also creates a logistical nightmare, forcing staff to consult an ever-changing master list of "approved" students who had consented to coverage before writing or publishing a story about them or including their photo in the yearbook. Under such a complicated scheme it is inevitable that students or school officials will make mistakes. "Unapproved" names or photos will be published in some cases and "approved" students mistakenly omitted from student publications such as the yearbook in others. Such mistakes could expose a school district to liability — or certainly accusations of incompetence — that had previously not existed.
Student news organizations have published millions of individual publications — full of student names and photos — without incident. In FERPA's 30-plus years in force, no school has ever been fined under the law because of anything published in a student publication. It is unclear why school district lawyers and administrators now believe it necessary to enforce such policy changes. FERPA does not require it, the Constitution almost certainly prohibits it — and common sense suggests the system is both fraught with problems and just plain stupid.
From the moment the first high school student media Web sites went online in the mid-1990's, school officials began imposing special restrictions on their use by student journalists. Among the more common restrictions were limitations, or outright bans, on the posting of student photos or names in the online version of student-edited publications. Such policies were often justified by pointing to some unspecified privacy or safety concern, often accompanied by a blanket claim that the law required such restrictions.17
In fact, there are no federal laws that require school officials to prohibit or restrict student journalists from publishing the names or photos of students in their online publications when that information is lawfully obtained, accurate and newsworthy.18 Where information can be lawfully published in the print version of a student publication, it should be lawful for student editors to publish it in their online media as well.
While federal law presents no barrier to accurate, otherwise lawful news reporting of student information in online student media, two states -- Maine and New Jersey -- have passed laws that govern the publication of student information online. Though there are, to date, no court decisions in either state addressing the issue, the plain language in both statutes suggests that they also should apply only to material posted by school officials, not to material created and published solely by students.19
Contrary to all the dire warnings, there remains no hard evidence to suggest that online student publications pose any more of a danger to students than their print-based counterparts.20 But no matter, a fear of the unknown has always accompanied the introduction of new technology and media and, until the dust settles, such battles are regrettable, but probably inevitable.
Besides merely being silly, though, such policies could have serious legal implications for the student media and school districts. Every libel law primer begins with essentially the same advice: publish only complete and accurate information. By requiring the publication of misleading or incomplete information, a strong argument can be made that the policies prohibiting the use of full names or other identifiers like photos increase, not decrease, the odds that student media — and possibly the school district that created such a faulty system — will be subjected to libel or invasion of privacy lawsuits because of misidentifications created from the confusion. Such polices — which have been criticized by various journalism groups21 — also hurt an online publication's reputation as a serious and credible news source.
Even though there should generally be no across-the-board legal barriers to student media publishing minor names — in print or online — there are valid reasons for not doing so in some circumstances. For example, many news organizations do not, as a rule, publish the names of young people accused of less serious crimes. Children, the thinking goes, should not be stigmatized for the rest of their lives for an error in judgment they made while growing up.
The Poynter Institute's Al Tompkins, who has written widely on media ethics, has created a useful list of questions and factors that student journalists may want to consider when deciding whether or not to identify juveniles, particularly those involved in criminal activities.
The decision about when and how to identify young people involved in news stories can sometimes be tough. In the end, however, the decision should be an editorial and ethical choice — not one dictated by law.