Glossary

Generally

The First Amendment

“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 protects the freedom of the press — including the student press at public universities.

Freedom of Expression Policies

Private universities generally are not bound by the First Amendment. But the institution’s policy may protect students’ expressive rights generally or student press rights specifically.

Civil Liability

Refers to being found at fault after being sued. This is not the same thing as being found “guilty” in a criminal law case, but it can come with significant consequences — including being responsible for paying monetary damages.

Tort

A civil wrong that can serve as the basis of someone’s lawsuit (i.e., libel, invasion of privacy).

Pre-publication Review

The process of looking over content — articles, images, audio, video, and more — before publication with a critical eye toward potential legal risk. Pre-publication review is different from editing or copy-editing, which are usually reader-focused and consider questions such as whether a reader will understand the content, whether the content will grab the audience’s attention, and so forth. Pre-publication review is not about the reader, but instead is about whether the content puts the journalist or publication at risk of legal liability.

Defamation

Defamation

A false statement of fact that tends to damage someone’s reputation.

Libel

A defamatory statement that is written, printed, or recorded. Libel is lasting.

Slander

A defamatory statement that is spoken. Slander is fleeting.

Legal Protections for Defamation

Truth

Truth is an absolute defense to defamation.

Actual Malice

When the statement is about a public official or a public figure about a matter of public concern, the speaker is liable only if she spoke with actual malice. Actual malice doesn’t mean ill-will. Actual malice means the speaker knew the statement was false or made the statement with a reckless disregard for the truth. Reckless disregard for the truth may look like neglecting to follow a lead or failing to fact-check.

Negligence

If the person about whom the statement is made is not a public official or public figure, the speaker generally will not be liable unless he was negligent — which means that a reasonable person would not have published it. Following journalistic norms helps to ensure a reporter is acting like a reasonable person.

Fair Report Privilege

A defamation defense that protects fair and accurate reporting about official government proceedings or acts. Most states recognize a version of the fair report privilege.

Opinion

A defamatory statement must be a false statement of fact — not an opinion. To be an opinion, the statement must not be verifiable (e.g., “She has bad taste”). But merely qualifying a statement with the phrase “in my opinion” will not automatically shield it from liability. A statement that implies a false assertion of fact that tends to damage someone’s reputation, even if it includes the phrase “in my opinion,” can still be defamation (e.g., “In my opinion, he is a thief.” Whether he is actually a thief or not can be proven).

Privacy

Invasion of Privacy Torts

Recording Interviews

Some states require consent from either both parties or just one party to record a conversation. If a journalist is in a single-party consent state, then the journalist — who is a party to the conversation — may legally record an interview without the permission of the interviewee.

Trespass

Trespass can happen by physical means — you go into someone’s backyard without their permission. Or it can happen through technology — you stand on the sidewalk in front of someone’s house using a telephoto lens to take pictures of the inside of their house. (Standing on the sidewalk with a normal camera wouldn’t generally be considered trespass, but using robust technology transforms it).

Intrusion

Occurs when an individual intrudes into a private place in a manner highly offensive to a reasonable person. This can be closely related to trespass. For instance, using a telephoto lens to take pictures of someone having sex would be intrusion.

Publication of a Private Fact

Publicizing a truthful private fact in a manner that is highly offensive to a reasonable person and is not a legitimate public concern. The information needs to be super private, like STD status.

False Light

Giving publicity to a person by placing her in a false light and in a way that is highly offensive to a reasonable person. The person who placed the other in a false light must have known or acted in reckless disregard to the falsity of the publicized matter and that it would put the other in a false light. Truth is a defense to false light.

Misappropriation under the Right to Privacy

Using another’s name or likeness for the user’s benefit, commercial or otherwise, without permission.

Misappropriation under the Right to Publicity

Using another’s name or likeness for commercial purposes without permission.

Invasion of Privacy Defenses

Consent

If a person gives permission to have their information published, he cannot sue for invasion of privacy.

Newsworthiness

If the information is a matter of public concern (i.e., newsworthy), then its publication is generally protected. For example, private actions of public officials may be fair game.

Copyright

Copyright protects any original work that is fixed in a tangible medium of expression, including writings, images, audio, and video. Copyright gives the creator of the work the ability to stop others from using the work without his permission. Copyright law automatically applies once the work is created, but the creator only can sue to enforce his copyright if he registered it with the U.S. Copyright Office.

Fair Use - Copyright

Fair use is a defense to copyright infringement. The fair use defense relies on a complicated analysis involving a list of factors. But generally, use of a copyrighted work for commentary or educational purposes is allowed. Another significant feature of fair use is whether the use of the work was transformative such that it takes on a different purpose and character than the original. Be aware that using the copyrighted work in reporting — even for a student newspaper — does not automatically make it a fair use.

Trademark

Trademark protects commercial brand identifying marks, like logos and slogans. A trademark must be registered to be protected. Trademark infringement occurs when another uses the mark (or one similar to it) in a way that causes a likelihood of consumer confusion.

Dilution

Trademark dilution means that another has used the trademark in a way that weakens its distinctiveness or harms its the mark owner’s reputation.

Fair Use - Trademark

Fair use is also a defense in trademark law, but it doesn’t involve as complicated of an analysis as in copyright. In trademark law, fair use most often applies to journalists who use trademarked content to refer to the trademark holder (such as using the name, Kleenex, to refer to Kleenex brand tissues in an article).

Licensing

To get permission to use another’s intellectual property, users should get a “license” from the owner — either by creating a license agreement with the owner individually or taking advantage of a creative commons license. Student journalists can take advantage of images and other assets with a creative commons license, so long as they remember to adhere to attribution requirements. Every creative commons asset will indicate what proper attribution will look like. Using this content with proper attribution constitutes a license to use it, so copyright issues are no longer a concern. Make sure to follow the attribution instructions exactly, as journalists have had trouble with creative commons copyright owners taking advantage of slight deviations from the attribution instructions.

Access to Information

FOIA

FOIA generally refers to laws that allow people to request information from government agencies. The Freedom of Information Act applies to the federal government, but similar laws apply to state and local governments. Other names for these laws include public records laws, open records laws, or freedom of information laws.

Public Record

What constitutes a public record depends on state law, but generally, it is a piece of information that memorializes some form of government activity, which can be contained in various forms (digital, physical, print, etc.). State law provides exemptions for certain documents, like those that include medical records or private financial information.

Open Meetings Laws

Open meetings laws, also referred to as sunshine laws, require government meetings to be open to the public. Like open records laws, there is a federal sunshine law as well as state sunshine laws that apply to state and local governments.

Shield Laws / Reporter’s Privilege

Shield Laws

Shield laws are state laws that allow reporters to conceal their confidential sources (also known as reporter’s privilege). There is no federal shield law. How a shield law applies depends on the state.

Prior Restraint

Prior Review

Occurs when a university official demands that an editorially-independent speaker or publisher review the content of the publication before it can be distributed.

Prior Restraint

Occurs when a university official asks that a speaker not distribute particular content or not speak about a particular topic and refusal to comply causes the speaker to reasonably fear negative consequences (e.g., reduced funding, difficulty accessing sources).