From the Hotline

From the Summer 2001 issue of The News Media & The Law, page 19.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, will answer common questions that we get from journalists.

Q: I’m preparing a story that involves interviewing children of various ages,and people keep telling me that I need their parents’ consent — and eventhe principal’s consent if they’re on school grounds. Is this true?

A: This question comes up often, and in many cases requires a judgement call by the reporter at the time of the interview. To get a broader perspective, we asked three media lawyers what they would advise journalists to do.

Mark Goodman, Student Press Law Center, Arlington, Va.: At the Student Press Law Center, we are frequently confronted with questions about interviewing minors. Many people presume there are constraints on such interviews that no court has ever recognized. The result is that the voices of young people are often absent in discussions of issues that dramatically affect their lives.

If you’re not gathering information about the private life of the minor or the minor’s family, neither parent nor school consent is necessary in order to conduct an interview. And even when the subject is a private one (drug use, sexuality, family life, etc.) some teenagers may be capable of giving valid consent without parent approval. The limited legal scholarship on the subject indicates that if a minor is capable of appreciating the consequences of giving consent, then his or her consent alone will be valid. Thus if you fully explain to a reasonably mature 15- or 16-year-old where their comments will appear and what the potential consequences of publication might be for them, obtaining parental consent may not be necessary. Of course, parental consent is never a bad idea when you can obtain it.

Access to the minor, especially on school grounds, is often as big an issue as the interview itself. Local school policy or state law will be relevant in determining a journalist’s right to enter school grounds. One thing is clear: public school officials do not have the authority to prohibit students from talking to the media.

Charity Kenyon, Riegels, Campos & Kenyon, LLP, Sacramento, Calif.: Children have First Amendment speech and press rights. The U.S. Supreme Court recognized those rights in Tinker v. Des Moines Community School Dist., 393 U.S. 503 (1969). Many states have laws explicitly protecting, for example, the student press. In California an opinion of the state’s Attorney General recognized that the student’s right to speak includes the right to speak to journalists without parental permission.

Rights of news media access to school campuses have been a battleground. While in California, for example, the Penal Code expressly exempts news media from the requirement of registering before entering a campus, school administrators have construed Education Code provisions to permit exclusion to protect against disruption. Some school districts across the country have complicated the issue by adopting policies that allow students (or their parents) to elect not to have their children interviewed.

Parents can be very protective, depending on the age and subject matter of the interview. A successful suit for infliction of emotional distress in California followed a brief discussion with young (under 11) children home alone next door to a crime scene. The less than a minute interaction was not broadcast. Nevertheless, the court felt the reporter might have sought to manipulate the children’s emotions for the viewers’ titillation.

We advise caution, common sense and review of local laws and policies. Consider the spectrum of age and topics to assess the risks of proceeding without parental consent. The younger the child and the more controversial the topic, the more likely permission should be sought. The older the child and the less controversial the topic, the less the risk.

Robert D. Lystad, Baker & Hostetler LLP, Washington, D.C.: The short answer is: it depends. Is this a story about pet hermit crabs or a story about child abuse? Regardless, heed this warning: there is nothing that parents are more protective of than their children. Perhaps as a result, courts consistently show special concern for the rights of children who are subject to media attention. Minors are often viewed as being too immature to give knowing consent to an interview. For example, a claim for emotional distress was allowed to proceed against a TV station which interviewed — without a parent’s consent — three young children in their home about the murder of two other neighborhood children. Understandably, the more intrusive and invasive the subject-matter of the interview, the more protective parents and a court will be.

Further, though reporters do have a general right of access to most public property and public facilities, this right does not necessarily extend to public school children. This is a recognition that schools, for obvious reasons, need to exercise control over who has access to the students they supervise. Parents also have a legitimate expectation of privacy for their children while on school grounds, which the school can act to protect. Obtaining the consent of both the school and a parent is therefore a prudent protective measure, even if not strictly required.

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Q: I’m interested in comparing standardized test scores from several schools in my area to find out if students from some schools performed better than others. Can I have access to records of a school’s performance?

A: As with any record governed by state law, the answer depends on the state in which the schools are located. You may have difficulty obtaining records of individual student performance because some states have prohibitions against access to any records that identify a particular student’s performance or records that would invade a student’s “privacy” interests. Additionally, there is a federal statute that threatens funding loss to states that do not protect “educational records” from being released to the public without permission of the students or their parents. Although there has been some question over what records are considered “educational records,” individual scores are likely to be covered.

However, gaining access to aggregate test scores may be much easier. For one thing, there is no privacy interest implicated in aggregate test scores, which negates the purpose of most statutes designed to close off access to the records concerning individual students. Secondly, there is a strong public interest in knowing school performance, especially for parents of children in those schools. When making a request for these records you should always point out the important public benefit in assessing school performance. If you are interested in the laws that govern student records in your state, please look at our online publication, Tapping Officials’ Secrets, at https://www.rcfp.org/tapping.

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Q: What constitutes consent when asking permission to record a conversation?

A: Generally, you may record, film, broadcast or amplify any conversation in which all parties consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. The consent of all parties is presumed in these instances.

In most states and under federal law, only one party in a conversation needs to consent for the recording to be lawful under the wiretap statutes. Those states that require that all parties consent are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

However, in light of the differing state laws governing electronic recording of conversations between private parties, journalists are advised to err on the side of caution when recording or disclosing an interstate telephone call. The safest strategy is to assume that the stricter state law will apply.

For example, a reporter located in the District of Columbia who records a telephone conversation without the consent of a party located in Maryland would not violate District of Columbia law, but could be liable under Maryland law. A court located in the District of Columbia may apply Maryland law, depending on its “conflict of laws” rules. Therefore, an aggrieved party may choose to file suit in either jurisdiction, depending on which law is more favorable to the party’s claim.

But what about where the interview is over the phone and you need to get consent from all parties? Is silence consent? If the person you have called has a notice that states “all calls may be monitored” — is that consent sufficient for you to record them? What about that intermittent beeping that some recorders make — is that enough?

Consent is often not defined in statutory law and may have various meanings in different jurisdictions. The safest course of action is to tell someone you plan to record the conversation and get his or her verbal assent before beginning.

Courts generally appear willing to allow implied consent, but not constructive consent. Implied consent is “consent in fact,” which is inferred from surrounding circumstances indicating that the party knowingly agreed to the recording.

“The circumstances relevant to an implication of consent will vary from case to case, but the compendium will ordinarily include language or acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private,” one court noted.

Some courts have held that consent for a recording is implicit where the person is informed or otherwise knows that all incoming calls on a particular phone line are being tape recorded. For example, in one case from the U.S. Court of Appeals in Boston (1st Cir.), the court held that where a person gave permission for another to routinely listen to and record his phone calls, he in effect consented to that person recording all his calls.

But providing notice that a phone conversation may be “monitored” is not the same and insufficient in some jurisdictions. In another First Circuit case, the court held that if the person who was recorded did not know both that “monitoring” meant recording, and that he would be subjected to monitoring, he did not consent to the recording.

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Q: I know the judge has ordered the parties in a lawsuit to go to a settlement conference. Do I have a right to attend the conference and observe?

A: Even though judges will sometimes order litigants to go to a settlement conference, it is generally not considered to be a “court proceeding” and it is unlikely that a court would rule that a journalist has a “right” to attend. You may ask permission from the parties to attend, but if they reject your request, you probably have no recourse.