By Mike Hiestand
Like the patient who avoids the dentist until he gets a toothache, too many people look to the law only for help in fixing problems when they would have been far better off had they used it to avoid the trouble in the first place.
Unfortunately, I’ve seen too many high school journalism curriculums that can be used as Exhibit A.
For many high school journalism programs, classes on media law issues – libel, invasion of privacy, censorship, access to records, etc. – are often found, if they are found at all, on the final pages of a course syllabus. Months after the class on the Inverted Pyramid and tucked somewhere between Headlines and Feature Writing, lessons focused on press freedom and responsibility sometimes seem to be accorded “advanced journalism” status: important – yes – but not part of the basic stable of journalism skills, such as writing a news lead or copy editing.
I understand the sentiment and I won’t spend my time arguing the relative importance of various journalism skills. They’re all important and figuring out a way to fit everything into a semester, or even a school year, is an impossible task. Still, just like regular dental checkups reduce the odds of time-consuming, expensive and painful root canal surgery, I’m convinced that spending an hour in the newsroom by early October introducing your student staff to libel and other media law topics makes it much less likely you’ll be spending weeks in April in a courtroom.
I sometimes give a workshop to new student media advisers and editors called “Student Press Law in 360 Seconds.” Of course, the purpose of the workshop is not to turn attendees into media law experts that can provide all of the answers. (That, in fact, can wait until April.) Rather, the goal of the hour-long session is simply to help them recognize the big questions and to make them aware of the resources to which they can turn for answers. And honestly an hour is about all it takes to at least activate one’s media law radar, to develop an awareness of the common danger zones and – most important – to know when you need to seek additional help.
As we begin another school year, here are some super-condensed media law “nuggets” to share with your student staff. Of course, there are always risks in over-simplifying complicated topics and that is certainly true here. Still, I believe than even an oversimplified ounce of prevention – presented to your staff as just that – can prove quite effective.
Libel Law
If you carelessly publish a false statement that seriously harms someone’s reputation you risk being sued for libel. Of course there is more to it – various privileges, defenses, differing legal standards, etc. – but if a young reporter knows that there can be severe consequences if they report carelessly and write something that can’t be proven true, chances are they may take their job a bit more seriously from Day One. Also, particularly when discussing libel and invasion of privacy law, I’ve found that nothing anchors the concepts more than some good examples.
Privacy Law
Everyone is entitled to some privacy and, as a reporter, there are some places that you can’t go, some things you can’t do and some stories that you can’t print – even if true. Again, while there can be some complicated exceptions to the rule, the law generally tracks common sense regarding what private places are off limits absent consent (inside a person’s home, the school locker room, etc.), what newsgathering practices are usually prohibited (planting an electronic bug, hacking into private e-mail, etc.) and what topics are so private or embarrassing that they can’t be written about. Of course, when it comes time to actually cover a sensitive news story it will be important to spend time discussing the “newsworthiness” defense as well as the general role of the press in reporting news, even news that might occasionally make newsmakers or some readers uncomfortable. Again, the primary goal is to make students mindful that lines do, in fact, exist and that questions need to be asked before – not after – those lines are crossed.
Censorship
At a public high school, students should be informed from early on that they are protected by the First Amendment and all students should be told that any censorship by government (and school) officials – while it may not always be worth fighting – should never be accepted as the norm. Moreover, while the law may now give high school officials the “right” to censor some school-sponsored student publications, that doesn’t mean that it is the right thing to do or that such official conduct should go unchallenged. Do not take it for granted that this is a message that they have picked up in their civics class or have somehow absorbed during their dozen-plus years as American citizens. Sadly, that is often not the case. Fully explaining the scope of First Amendment protection in the post-Hazelwood era is, unavoidably, somewhat complicated and may need to tabled for later. However, explaining that censorship is not something simply to be yawned at as normal is a lesson that should not wait.
Copyright Law
If you want to publish something that you didn’t create for yourself three rules kick in: Rule #1: You must give credit to whomever did create it. Rule #2: Before you publish, you need to obtain the owner’s permission. Rule #3: Until you conclusively determine otherwise, you must assume that everything in every form (including material on the Internet) is owned by someone else and protected by a copyright. If you always follow these three rules, you’ll never have a copyright problem. Simple as that. However – and this is where it gets complicated – sometimes you can skip the rules. For instance, some things can’t be copyrighted. Titles, slogans, short phrases and other non-creative works fall into that category and you don’t need anyone’s permission to use them. Likewise, facts and ideas are not subject to copyright. Also, copyrights expire – and once they do, consent to use the work is no longer necessary. The most important exception for student journalists to grasp, however, is Fair Use. The Fair Use exception generally permits the use of limited portions of copyrighted material without first seeking permission if the material is a central part of a news story, a review, commentary or educational discussion. While a full understanding of Fair Use may take some time, it is fairly easy to help students recognize situations where the issue might arise and when they need to ask more questions.
Freedom of Information Law
Records and documents held by public bodies – including public schools – must generally be made available upon request. Meetings conducted by public bodies must generally be open to the public. And there are laws, fairly easily found and used, that make it so. Yes, of course, there are exceptions. But those hurdles and the specifics of the law can be addressed as they arise. The important thing is that student journalists be reminded that in America the government is supposed to work for the people and the people, on whose behalf the press operates, have a right – and usually the legal means – to know what they’re up to.
Reporters Privilege
Using confidential sources to obtain information should be a rare event and even then should generally only be done as a last resort. The reason for this is simple: If you promise a source that you will keep his identify secret, you must be prepared to keep that promise – no matter what – until the source tells you it’s okay to do otherwise. Unfortunately, the “no matter what” part can sometimes be unpleasant. Shield laws and/or court-recognized reporters’ privileges exist in most states and offer journalists some protection against having to divulge confidential information and it is a good idea to know where you stand before making any promises. Also, it’s important to keep in mind that students and advisers may not always stand on the same legal footing. As school employees, student media advisers may be legally required to notify school officials about unsafe or illegal conduct of which they are aware. Therefore, where student journalists are working with a source that may be involved in such activity (for example, a student that admits to having purchased drugs on school grounds), they should be careful not to disclose the source’s identity to the adviser. This will avoid putting everyone in a sticky situation.
There are certainly other media law topics that are worth exploring (obscenity, advertising, Internet law, etc.), but where time is limited covering the above makes for a simple but effective legal checkup.
Okay, now you can get back to the joys of copy editing.