By Mike Hiestand
After discussing the essential role of a free and independent press and explaining the important legal protections guaranteed by the First Amendment, here is a good Day One homework assignment for your publication staff:
“Write the following 50 times: ‘I am legally responsible for everything that I write or help to publish.'”
It is a sometimes sobering – but absolutely necessary – wake up call to which many high school student journalists are dangerously oblivious.
The message is this: If you are a reporter or photographer, the law says that you are personally responsible for all of your actions while gathering the news and any material that you subsequently publish. For example, if you have written a news story or column or penned an editorial cartoon that contains serious and sloppy factual errors or if you have taken a photograph of someone in a private place you can be held liable for your mistakes.
If you are an editor, the responsibility is even greater. You can be held legally accountable for all content in which you played a part in publishing. For instance, you are responsible not just for the stories that you personally wrote, but also for all copy that you edited. If you carelessly missed catching a serious factual error in a news story submitted by one of your reporters or if you approved the placement of a misleading photograph you are liable for those mistakes. Additionally, you can be held responsible for content mistakes that appear in advertisements, letters to the editor, guest columns and any other material that you decide to publish. Big note: you are responsible for such material even though you didn’t write or create it yourself. (The law may be different for material that is published solely online. For more information, see the SPLC’s “Guide to Liability for Online Speech,” available on the SPLC website at: http://208.51.152.151/legalresearch.asp?id=24)
Who is and isn’t potentially liable will depend on who was in the chain of responsibility for publishing the material. For example, if a story about the football coach published in the sports section turns out to be libelous, the following student staffers are potentially liable: (1) the reporter(s) who wrote the story, (2) the sports page editor who did most of the editing and (3) the editor in chief, who is ultimately responsible for all content in the newspaper. The entertainment page editor, for one, would not be liable if he or she played no part in publishing the story.
While student editors and reporters are fair targets in a lawsuit involving the content of their student publication, they are typically not very attractive ones. In lawyer’s lingo they are usually what is called “judgment-proof.” In other words, while someone unlawfully harmed by a story may be able to win a multi-million dollar libel case against a student journalist in court, they are not likely going to be able to collect on their judgment. As the saying goes, you can’t get water from a stone and most students are lucky to have enough money in their pocket for lunch, let alone adequate funds to pay off a major award for legal damages.
Bringing a libel lawsuit can be eye-wateringly expensive. It is not uncommon for experienced libel attorneys to charge in excess of $200 an hour for their time. And pursuing a libel claim – especially if it goes to court – takes a lot of time. For that reason, before deciding to bring a lawsuit, lawyers and their clients usually investigate the financial background of the person or entity they are looking to sue to see if they have sufficient assets available to make a lawsuit feasible. Because penniless students rarely – on their own – justify the time and expense required to file a lawsuit, a person suing will usually try to claim that there were others in the chain of responsibility who should also be held liable for the students’ unlawful content. In their quest for a “deep pocket,” lawyers will usually also target publication advisers, other school employees, the school system and sometimes even parents.
Fortunately, lawsuits against high school student media are extremely rare. In fact, to date, there are no published court decisions in which a high school has ever been held liable for material published by its student media. Consequently, there is scant law on the topic. There are, however, a number of cases involving public college student media that could provide helpful guidance. These cases have made clear that as long as college employees – including advisers – maintain a hands-off policy with regard to final content decisions, they will not be included in the chain of responsibility and the assets of the school itself cannot be tapped. Courts in such cases have said that advisers can still provide advice, but they must leave the ultimate decisions regarding content and publication to the student staff. (For more information, see the SPLC’s guide, “Liability for Student Media,” available on the SPLC website at: http://208.51.152.151/legalresearch.asp?id=30)
Successful lawsuits against parents are almost unheard of. Parents cannot be held liable for their child’s speech merely because of the parental relationship – they must have done something wrong themselves. For example, if a mother edits her child’s underground newspaper, she would be in the chain of responsibility for that publication just like any other editor. While that’s fairly straightforward, a recent Pennsylvania case created a new – and more problematic – theory for parental liability. There a court held that the parents of a 14-year-old boy who published an especially vile and defamatory website were liable for the “negligent supervision” of their son because they knew about his website yet failed to take sufficient steps to control their son’s conduct. The case is the first – and only – reported decision holding parents liable for their child’s speech and the judge in this case -perhaps because of the especially troubling speech at issue – probably pushed the law further than it actually goes.
The liability message to students should be sent not to frighten, but to alert. With a little knowledge – and a lot of common sense – legal problems can be avoided. As mentioned above, lawsuits against high school student media are exceedingly rare. So while it’s important to be careful, journalists do neither themselves nor their readers a favor by being legal “scaredy cats.” It is essential that an appropriate balance be struck. Recognizing that with freedom comes responsibility is probably the biggest single step towards getting the balance right.