Naming Names: Identifying Minors A discussion of the legal and ethical issues concerning publishing minor names and photos in student media © 2011 Student Press Law Center
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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.
What the courts say
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. 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, the name of a juvenile who was kidnapped and sexually assaulted, the name of a high school student viciously attacked by his classmates at school, the name and photograph of a 12-year-old who was charged with the attempted murder of a police officer, the names of juveniles who testified in a trial in which the adult defendants were charged with supplying alcohol to minors, the photograph of a minor child taken while in the arms of her mother on the courthouse steps following a much-publicized paternity hearing 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.
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. 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.
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.
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. But these limitations are based on restrictions that apply to all, not just minors.
Student Information and FERPA
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 (FERPA), also sometimes called the Buckley Amendment. 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 school — 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.
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.”
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.
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. 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.
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. 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 groups — also hurt an online publication’s reputation as a serious and credible news source.
The decision to publish or not publish
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.
Among them: (1) Who is served by identifying the juvenile? (2) How newsworthy is the story? (3) What is the juvenile’s history? (4) Would others be harmed if the minor was not named or if rumors were allowed to circulate unchecked?
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.
ENDNOTES1 Smith v. Daily Mail, 443 U.S. 97 (1979). See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977)(Supreme Court lifted an injunction that prohibited publication of the name or photograph of an 11-year-old boy charged with second-degree murder). A narrow variation to this general rule may exist in cases involving the publication of the names of minors obtained during otherwise closed hearings. Where reporters have agreed not to disclose information as precondition to attending such proceedings, they may be legally bound to honor their agreement (see discussion, below). 2 Mikan v. Valley Publishing, 589 P.2d 1201 (Ore. App. 1979). 3 Poteet v. Roswell Daily Record, 584 P.2d 1310 (N.M. 1978). 4 Tucker v. News Publishing Co., 397 S.E.2d 499 (Ga. Ct. App. 1990) 5 Arkansas Democrat-Gazette v. Zimmerman, 20 S.W.3d 301 (Ark. 2000). 6 George W. Prescott Publ’g Co. v. Stoughton Div. of the Dist. Court, 701 N.E.2d 307 (Mass. 1998). 7 Heath v. Playboy Enterprises Inc., 732 F.Supp. 1145 (S.D. Fla. 1990) (men’s magazine’s publication of photograph of minor child — the grandson of former talk show host Johnny Carson — did not give rise to private facts case brought by child’s court-appointed guardian despite lack of consent to photo by child). 8 Register-Herald v. Canterbury, 449 S.E.2d 272 (W.Va. 1994). 9 See, e.g., In re H.N., 632 A.2d 537 (N.J. Super. Ct. App. Div. 1993) (New Jersey appellate court upheld the right of a newspaper to publish the name and other identifying information about a 16-year-old charged with scalding her two-month-old nephew to death while bathing him. The court noted that the information was lawfully obtained from press conferences and other disclosures made by law enforcement officials.) 10 Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. 1993) (Minnesota Supreme Court upheld lower court order permitting media to attend closed trial only if they agreed not to reveal the names of the juvenile victims and witnesses); In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(Illinois Supreme Court ruled that a reporter admitted to a juvenile proceeding after agreeing not to disclose names could not publish the identities of two minor children, which he had learned during the course of the proceedings); In re Minor, 563 N.E.2d 1069, 1077 (Ill. App. 1990). See also, Edward A. Sherman Publ’g Co. v. Goldberg, 443 A.2d 1252 (R.I. 1982). 11 San Bernadino County Dep’t of Public Social Services v. Superior Court, 283 Cal.Rptr. 332 (Cal. Ct. App. 1991). See also, In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(information obtained by reporter outside of closed juvenile hearings not subject to non-publication agreement). 12 See SPLC Legal Brief: Invasion of Privacy Law , Available online at: http://www.splc.org/legalresearch.asp?id=29 (last viewed Dec. 5, 2006). 13 20 U.S.C. Sec. 1232g. 14 See, e.g., Owasso Independent School District No. I-011 v. Falvo, 122 S.Ct. 934, 939 (2002) (a student is not a person “acting for” educational institution for purposes of FERPA); Yeo v. Lexington, 131 F.3d 241 (1st Cir. 1997) (en banc), cert. denied, 524 U.S. 904 (1998)(student editors of high school yearbook were not “state actors” and their editorial acts must be judged apart from school administrators); McEvaddy v. City University of New York, 633 N.Y.S.2d. 4 (1995). See also, Sevier County Bd. Of Educ. v. Worrell, 1994 WL 666926 (Tenn.App. 1994)(distinguishing between information about students obtained by reporter and student records maintained by the school and protected from disclosure by state’s version of FERPA). The U.S. Department of Education, the agency charged with enforcing FERPA, has said: “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘education records’ maintained by an educational agency or institution, or by a person acting for such agency or institution. Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, U.S. Department of Education (Sept. 1993). 15 For a thorough discussion of the Family Educational Rights and Privacy Act and its application — or misapplication — to student media, see “FERPA Fundamentalism,” Student Press Law Center Report, Spring 2001, at 35. http://www.splc.org/report_detail.asp?id=685&edition=18. For a discussion of public high school students’ First Amendment rights, see the SPLC’s Hazelwood Guide, available online at: http://www.splc.org/legalresearch.asp?id=4. For information about the rights of students attending private schools, see the SPLC’s Legal Guide for the Private School Press, available online at: http://www.splc.org/legalresearch.asp?id=52 (documents last viewed Dec. 5, 2006.) 16 Frasca v. Andrews, 463 F.Supp. 1043, 1050 (E.D.N.Y. 1979). 17 See, e.g., Policy restricts newspaper’s online edition, Student Press Law Center Report, Fall 1998, at 20 (http://www.splc.org/report_detail.asp?id=295&edition=10)(last viewed Dec. 4, 2006). 18 There has been some question about whether a provision in the Children’s Internet Protection Act (CIPA), 47 U.S.C. § 254, could be construed to prohibit school-sponsored online student publications from publishing identifiable information about students. CIPA, a federal law that requires schools and libraries receiving subsidized rates for Internet access to install filtering software on their computers, contains a provision that requires schools to adopt and implement an Internet safety policy that addresses unauthorized disclosure, use and dissemination of personal identification information regarding minors. 47 U.S.C. Sec. 254(L)(1)(a)(4). Some school districts have interpreted this provision as prohibiting the publication of minors’ names or photos in student-edited publications that are hosted by school Web sites. In fact, the Federal Communications Commission has offered no guidance as to what constitutes personal identification information. Instead, the FCC has concluded that “local authorities are best situated to choose which … Internet safety policies will be most appropriate for their relevant communities.” Federal-State Joint Board on Universal Service: Children’s Internet Protection Act, 47 CFR Sec. 54 (2001). This vague directive — and the lack of a mandated definition regarding what constitutes ‘personal identification information’ — hardly supports the argument by some school school administrators that CIPA compels them to prohibit the publication of students’ names or photos on school Web sites. 19 For example, the Maine law states that: “[A] public school may not publish on the Internet or provide for publication on the Internet any personal information about its students without first obtaining the written approval of those students’ parents.” Me. Rev. Stat. Ann. tit. 20-A, sec. 6001 (2009)(emphasis added). New Jersey’s law seems even more clear: “The board of education of each school district and the board of trustees of each charter school that establishes an Internet web site, shall not disclose on that web site any personally identifiable information about a student without receiving prior written consent from the student’s parent or guardian… .” N.J. Stat. Ann. sec. 18A:36-35 (2009)(emphasis added). Moreover, were such statutes to be used to enforce a blanket ban against student media, they would certainly be subject to a constitutional challenge. (The same would apply to any local or school district policies that may exist.) Nevertheless, where school officials remain unconvinced, students may want to explore alternatives to school-sponsored Web sites, such as the free Web site hosting services offered by the American Society of Newspaper Editors. (http://my.highschooljournalism.org/intro.cfm)(last viewed Jan. 14, 2011) since neither CIPA nor the state statutes apply to private Web hosting services. 20 See, e.g., “School districts carefully weigh using online images,” Associated Press, April 29, 2001 (reporting that there have been “no known cases where child online pornography could be traced to a school Web site”). 21 See, e.g., Journalism Education Association and National Press Photographers Association policies. See http://www.splc.org/newsflash.asp?id=126&year=2000. (Last viewed Dec. 4, 2006). 22 Tompkins, A., “Identifying Juveniles,” The Poynter Institute (Feb. 29, 2000). Available online at: http://www.poynter.org. Enter QuickLink number: A5555. (Last viewed Dec. 4, 2006).