By Mike Hiestand
Channel surf any weekday morning and you are almost sure to find a TV talk show or two where people are revealing highly personal, intimate – sometimes poignant, sometimes humiliating – details about themselves. When adults do this, most would agree that they have voluntarily agreed to divulge their secrets in front of 2 million viewers and they have no one to blame but themselves if they later regret their decision. But what about when minors share details of their private lives? Is there any difference? Can minors (typically a person under the age of 18) validly consent – without a parent – to the publication or broadcast of information about themselves that either could invade their privacy or libel their reputation?
For student media the question is an important – and common – one. A story on teenage pregnancy or depression, where a high school student agrees to share her otherwise private experience with the student newspaper, would be a common example.
The American Law Institute (ALI) has noted in its Restatement, a widely accepted legal authority, that consent should be effective as long as the person giving the consent has the legal capacity to do so. In a comment to Section 892A of the Restatement (Second) of Torts, the ALI says that a child’s consent is and should be effective if he is “capable of appreciating the nature, extent and probable consequences of the conduct [to which he consents],” even if parental consent is not obtained or expressly refused.
A growing number of courts have followed the reasoning of the Restatement. For example, a federal appeals court rejected a 16-year-old’s complaint that a TV talk show invaded her privacy when the minor’s stepmother – after the minor verbally attacked her during the show – responded by reading aloud her stepdaughter’s police record. The court found that the minor was sufficiently capable of realizing that she would be opening the door to the discussion of her personal life by appearing on a national television talk show.
The court concluded: “We need not decide at what age a child is sufficiently mature to waive her right of privacy, but 16 is old enough when no circumstances of deception or overreaching or limited competence are shown.”
Courts also have found that where a story is “newsworthy,” a minor’s privacy rights are equal to those of adults and it is not necessary for a publication to gain the consent of minors or their parents merely to report the story. One California court, however, recognized some limits of the newsworthiness defense and found that when reporters dealt with children, particularly those under the age of 12, reporters must think about the probable consequences of their conduct and operate within the bounds of basic decency.
There are exceptionally strong policy and legal arguments in favor of recognizing a minor’s consent as valid in the right circumstances. First, such reasoning is consistent with that adopted by courts in dealing with minors in other contexts, such as determining whether a child is responsible for injuries he causes. Second, this position takes into account the importance of recognizing the First Amendment right of minors to have their voices heard.
For example, without legal recognition of a minor’s right to consent, a 17-year-old gay student wanting to relate his experience in the hopes of helping other students cope with some of the challenges he faced would likely find few media outlets willing to touch his story for fear of being subsequently sued by his parents or the student himself should he later regret his decision to go public.
The Restatement view strikes a sensible middle ground. It recognizes a person’s age as simply one factor, among others, to be considered in determining if consent is valid. As long as a person understands what it is that he or she is consenting to and realizes the consequences of allowing such information to be published, the consent should hold up. Where a person – irrespective of age – is too immature or is otherwise unable to appreciate the significance of giving consent, the consent is invalid.
Under this view, the Student Press Law Center believes most high school students can provide valid consent. Most elementary-aged children, because of their immaturity, probably cannot.
When obtaining consent from a minor, student media should go out of their way to make sure the minor understands who you are (a reporter), what you’re doing (writing a story for publication in the student newspaper) and what he or she is agreeing to (for example, she will be a named source whose information, quotes and photo will be used to illustrate the experience of gay students). Remind your source that your publication is read not only by other students, but by parents, faculty, neighbors, potential employers and even other larger media, which could pick up on the story. When the information is especially “sensitive,” you should convey to him some of the possible consequences – both immediate and future – of publishing his information. Remind him that he is under no obligation to give you the information you are requesting. It’s also good practice to suggest that he talk with a parent or some other adult before proceeding. Obtaining parental consent (if one is willing to provide it), while it may not be necessary, never hurts.
Finally, the Student Press Law Center suggests that you obtain the consent in writing. A verbal waiver is valid, but can be harder to prove. The written consent should note how the minor’s information was collected and how and where it will be used. It should also state that the information is provided voluntarily, that the student media staff and minor thoroughly discussed the implications of providing consent, that the minor understands he is free to consult his parents or guardians and that he understands what he is doing when he signs the consent statement.
While the law in this area is still developing, student media that follow such precautions should be able to rest easy.