Texas Center For Community Journalism

Yes, news media can safely publish information about student-athletes without violating the law.

However, publishers may run into some legal difficulties based on the sources of their information. 

The First Amendment, with very few exceptions, protects the publication of truthful information.  Even when somebody engages in an unlawful act, such as illegally recording a private cell phone conversation, the publisher is not going to get in trouble for broadcasting or printing this information — as long as the publisher had no part in the illegal activity.  This was the case in the U.S. Supreme Court’s decision on this very situation, Bartnicki v. Vopper, 532 U.S. 514 (2001). 

As long as the information published is newsworthy and isn’t an outrageous and highly offensive violation of a person’s privacy — which are more typically personal medical or sexual matters — then the publisher won’t open itself up for civil litigation on privacy grounds, either.

That said, the source of this information could run into some legal problems.  The Federal Education Rights and Privacy Act (FERPA, also known as the “Buckley Amendment”) protects the privacy of student educational records.  Schools that receive federal funds can lose funding if they violate the provisions of FERPA, and the U.S. Department of Education can investigate unlawful release of student records. 

Records of school-related drug tests would certainly be protected by FERPA, and any school official releasing these could be in violation of the law.  A publisher receiving this information can legally publish it, of course.  But that publisher may very well be called upon to identify the source of that information under federal subpoena.  With no federal reporter shield law in place yet, publishers would have little choice but to reveal the identity of the source or face contempt of court sanctions.

The best way to deal with this would be to get sources on record that are not linked to the school administration — the players themselves, teammates, parents, or anyone else with specific knowledge of the reasons for their dismissal from the football team.

Unfortunately, there is no legal requirement that notices and press releases be distributed evenly. If a quorum of officials is present, a public notice must be posted at the appropriate place but there is no posting requirement for a press conference. I’d recommend that your first course of action would be to sit down with the official or officials in charge and discuss the issues. Explain that you want to be fair about your coverage, and you’re disturbed that they are trying to exclude your readers from the information that they believe is important. Make them realize this is not about you but about members of the public who rely on you for information. Sometimes that will give them the opportunity to rant and rave at you, and then you can all move forward.

As we all know, however, rational arguments do not always work. That leaves the old-fashionioned reporting approach:

• Are there public officials who are more sympathetic to you who could alert you to these events? Cultivate those people, and make sure you protect their identities, or they likely will be cut off, too.
• If you believe a press release has been issued, make an open records request for it. If they delay in giving it to you, file a complaint with the Texas Attorney General’s office. (Information that has already been released publicly is considered public under the law and can’t be withheld, generally.)
• Make an effort to show up regularly at every event and activity you hear about. I realize this takes a lot of staff time, but perhaps you could do this on a short-term basis until basic courtesies have been re-established.
• Do they have a working Web site? Constant checks to the Web site can also alert you to activities.

Rebuilding lines of communication can be very difficult. Quite honestly, sometimes there’s nothing you can do about it except to continue covering issues the way you believe they should be covered. You can also point out in your coverage that officials have refused to provide information, or refused to discuss issues. But that shouldn’t stop you from continuing to cover the things that are important in your community.