4.2: The Law

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

- The First Amendment to the Constitution of the United States

The Law

The First Amendment to the Constitution protects American citizens' right to free speech and to a free press, but the Amendment does not protect the people's right to say—or print—whatever they want. On the contrary, certain types of speech are illegal. You can't scream, "Fire!" in a crowded movie theater that's not actually on fire, for example, because your lie risks harming people. Similarly, you can't publish information about another person that is untrue and damaging to her; this is called libel, and it's against the law. Neither can you print material that invades someone's privacy or material that is obscene; these types of expression are illegal, and if you print them, you risk being sued.

Now you are probably thinking, "Oh, for goodness sake, no one is going to sue me! I'm 18 years old, I hardly know what I'm doing as a journalist, I've got editors in charge of my stories, and this is altogether not my responsibility. Plus, some other entity publishes the stories—a school, or a non-profit corporation—so why would anyone bother suing me? I have ten bucks in my wallet, and I'm about to spend five of them on a latte."

All of that is true, but make no mistake: If your byline is on a story containing illegal expression, you may be included in any libel lawsuit pertaining to that story. If you're named in the suit, you'll have to hire a lawyer, and those guys cost money—plenty of it—even if the case never goes to court.

On the other hand, it is true that you could write libelous material and never be sued. People harmed by libel often don't want to put themselves through the draining experience and expense of a lawsuit that only brings on more publicity, and they may be sympathetic to your position as a novice journalist and a student.

And even if you are sued for libel, you might not be found guilty, because it is not simple for a plaintiff to meet all the standards for a successful case.

Nonetheless, if you break the laws of libel, you will indeed risk provoking an expensive lawsuit, not to mention harming your newspaper's reputation and your own. Worst of all, you'll have harmed someone in a most serious way, or, in the case of obscenity, harmed your community.

Thus, it's important that you have at least a basic understanding of the law of libel, invasion of privacy, and obscenity. The brief descriptions below will give you a very general outline of the law. Far more thorough lessons are available from the Student Press Law Center (SPLC), a non-profit organization that educates student journalists about their legal rights. Please make sure to read the SPLC resources linked below in each section.

Libel

Libel is a false printed statement of fact that attacks a person's reputation or good name and tends to harm her reputation in the community. (Libel is based on the printed word; slander is based on the spoken word.) A negative, inaccurate story about someone would be considered libelous:

1. If the story were published (rather than, for example, contained in a letter).
2. If the person libeled could be identified in the story (either by name, or, if the person is not named, if a small group of readers could nonetheless figure out who he is).
3. If the person libeled then suffered damage to his reputation or diminished standing in the community.
4. If the reporter who wrote the story didn't verify the story's accuracy. A private person suing for libel can win his case simply by showing that a reporter didn't adequately verify information; a public person on the other hand (such as a celebrity, or someone who has a public role in the community) must also show that the reporter had reason to suspect the information might be false but published it anyway.

Now, please read this legal brief from the SPLC on libel law.

Note: If the reporter wrote the false and damaging statements only as a joke, or preceded them with "In my opinion…" the false and damaging remarks are STILL LIBEL, and the reporter can be sued. That's not so funny, but it's true.

Also note: If a source provides untrue and damaging information to you and you publish it, you are the one who can be sued. That's because your source merely spoke to you, one individual, while you published the libelous remark and therefore made it available for many people to read, which is what makes it damaging. So be sure you completely trust your source, or else be sure to double check the facts contained in your source's quotes, even quotes that are "on the record." If the quote is not true, it's your neck, not your source's, on the line.

Finally, remember this—the absolute defense against libel is simple: Publish only the truth.

Invasion of Privacy

It is against the law to invade someone's privacy, and you can break that law in one of four ways:

Intrusion

• If you enter someone's private place (a home, office, restroom, locker room, or other private area) without that person's consent, or photograph someone in a private place without that person's consent.
• If you quote or tape-record someone without that person's consent.
• If you reprint material without the author's permission.
• If you quote inaccuracies from a third party (that is, if you quote person A telling you what person B said, thought, felt, or did without person B verifying that it's true.)

Misappropriation

• If you use someone's name or photograph for commercial purposes without that person's consent.

False Light

• If you offer true information in a way that implies something false.

Private or Embarrassing Information

• If you publish private information. Medical records, sexual history, and school reports by their nature are private and privileged, and you cannot publish them. There are some exceptions, however. You may publish such information if it is considered "newsworthy"—for example, if you publish it in a story about a crime. You may publish private information if the person you're writing about gives you permission, or consent. And some public officials and "public figures" are not protected by the privacy law.

Now, please read this legal brief from the SPLC on invasion of privacy law.

Obscenity

Obscenity is defined as "something that by community standards arouses sexual desire, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value." Profanity is not the same thing as obscenity, so while you do not want profanity in your stories—it's almost always either tacky or offensive—you aren't breaking the law if you publish it. Obscenity, though, is indeed illegal.

I honestly think it's not that easy to write something obscene. I mean, look at the definition! You'd have to really work hard at it, keep your focus, and plow through the obscene descriptions. Chances are you'd become mortified with embarrassment and delete yourself right out of harm's way. If, however, you are writing a humor column late at night, especially if you're giddy with exhaustion, step away from the computer.

Copyright

Individuals in America have a right to their intellectual property—not only work they've published but also work they've created that has not been published. Thus, you may not reprint someone else's intellectual work—their poem, story, picture, photo, graphic, lyric, music, play, cartoon, board game, or any other sort of created work—without their permission. If you do so, you may be sued and fined. Please also refer to the SPLC's Student Media Guide to Copyright Law.

Public Domain

A great deal of material published on the Internet is, indeed, available to be reprinted in your newspaper that are not eligible for copyright protection; these materials are in the public domain. Among them:

• Titles
• Phrases
• Procedures, processes, or systems
• Any work of the United States government
• Any work with an expired copyright (this includes most work published in the United States before 1923, but some copyrights have been extended—check!)

Fair Use of Copyrighted Works

Even if a work is protected by copyright, you can use a limited portion without infringing on the copyright owner's rights if it qualifies as fair use. The doctrine of fair use allows you to include, for example, excerpts from a song in a music review, or quotations from a news article in an editorial, or lines from a poem, assuming, of course, you credit the writer. There are other qualifications for fair use as well: You cannot copy part of someone else's work for profit, and you cannot "lessen the value of the original work." To be on the safe side, just don't publish more than a line or two of someone else's work, and name the author in a credit. Please read this nicely compact summary of the conditions of fair use from YouTube.

If you plan to use more than a line or two of someone's work, find out who owns the copyright and contact them. In the old days, finding out who owned a copyright entailed a lot of schlepping to the library. Now, naturally, the information is at your fingertips on the Internet, which means if you do not go to the trouble of hunting up the copyright information, requesting permission to reprint material, and paying the fee to use that material if such a fee is imposed, you're really falling down on the job—crashing to the floor, really.

Creative Commons Licenses

The Creative Commons copyright license system was created in 2002 as a standardized way to grant authors, artists, etc. specific copyright permissions regarding the distribution and use of their work. There are six different types of licenses. Each license represents a different combination of conditions or rights for people ("licensees") who wish to use (distribute, copy, remix, build upon, what have you) the original work. You can think of the Creative Commons licenses as offering "gradations" of copyright permissions on the spectrum between no copyright (public domain) and full copyright ("all rights reserved").

The licenses and their terms are stated on the Creative Commons website. You can also find a more easily readable, condensed explanation on Wikipedia. Here's the gist of it:

• There are four types of conditions, and each is represented by its own symbol and two-letter abbreviation.
  1. 
     Attribution (BY): Requires licensees to give credit to the original author or licensor in the manner specified by them.
  2. 
     Share-alike (SA): Requires licensees to distribute derivative works under the same license governing the original work.
  3. 
     Noncommercial (NC): Requires licensees to use the original work only for noncommercial purposes.
  4. 
     No Derivative Works (ND): Requires licensees to only use verbatim copies of the work and forbids them from creating or using derivative works.
• The six Creative Commons licenses are different combinations of those four conditions. Each is referred to as "CC" ("Creative Commons") plus the relevant two-letter abbreviations.
  1. Attribution alone (CC BY)
  2. Attribution + NoDerivatives (CC BY-ND)
  3. Attribution + ShareAlike (CC BY-SA)
  4. Attribution + Noncommercial (CC BY-NC)
  5. Attribution + Noncommercial + NoDerivatives (CC BY-NC-ND)
  6. Attribution + Noncommercial + ShareAlike (CC BY-NC-SA)

The Scholastic Press

The First Amendment to the Constitution prevents the United States government from abridging a citizen's free speech. And principals and teachers at public schools—who are agents of the government—may not abridge their students' right to free speech, a right that was upheld in the 1969 landmark Supreme Court case Tinker v. Des Moines Independent Community School District. In this case, students protesting the Vietnam War wore black armbands to school, and the Court ruled that school administrators could not prohibit the students from this expression of free speech. The court declared that students' First Amendment rights "do not stop at the schoolhouse door" unless that expression "materially disrupts class work or involves substantial disorder or invasion of the rights of others."

In 1988, another Supreme Court decision altered that definition of students' First Amendment rights. In this case, Hazelwood School District v. Kuhlmeier, a high school principal in Missouri removed two pages from the student newspaper before it was published because he objected to two stories, one about pregnancies at the school, the other about the effect of divorce on children. The student editors sued their school, charging that the principle had violated their First Amendment rights, and this time the Court ruled in favor of the school, stating that school officials did have the right to review the content of school-sponsored publications and to remove material they found "unsuitable." The ruling did not say that school officials must review the material or censor it, only that, under certain circumstances, they may do so.

While the Hazelwood decision makes it far more difficult for scholastic journalists to have complete freedom of their presses, several states have overruled Hazelwood by passing laws guaranteeing student press rights, including the state of Massachusetts. The others are Arkansas, California, Colorado, Iowa, Kansas, and Oregon. For more about the enduring effects of the Hazelwood ruling, read this Education Week feature, published on the 25th anniversary of the landmark decision. This article details a recent challenge to Iowa's Student Free Expression Law, which was passed in 1989 in response to the Hazelwood decision.

Private School Journalists

The United States Constitution guarantees that citizen's free speech will not be abridged by the government, but it doesn't say anything about free speech being abridged—or not—by private institutions. Thus, private schools have control over how much freedom they allow their students in writing and editing the school newspaper. They may allow their students total control, or they may subject them to complete administrative review and censorship. It is entirely up to the school, which has every right to determine whatever policy it wants.

Most private schools elect to give their students a great deal of freedom of speech—since they are schools after all, in the business of teaching critical thinking—and they support the students with advisors who teach classes in journalism. At Phillips Academy, our student newspaper is completely uncensored and unsupervised, with student editors in charge of all content and the paper's finances. At many of our peer schools in New England, students are also in charge of their papers' content and finances, although stories may be reviewed before publication by an advisor or dean. The SPLC has a Legal Guide for the Private School Press, plus information and strategies for private school students seeking greater press freedom on their campuses.

Exercises

1. Take these online quizzes from the SPLC to test your knowledge of student press law and other basic legal concepts, including copyright, invasion of privacy, libel, and reporter's privilege.