Can reporters photograph public school students?

Answer

In general, school administrators may not require written parental permission before allowing members of the news media to interview students on the grounds students also have a federal constitutional right to freedom of speech.  (See 79 Cal. Op. Att’y. Gen. 58 (June 10, 1996).)  Under California law, students have the right to exercise freedom of speech and of the press.  (See Cal. Educ. Code §§ 48907, 48950.)

Accordingly, school officials may not impose prior restraints upon students except in limited circumstances.  (See 79 Cal. Op. Att’y. Gen. 58 (June 10, 1996).)  Requiring parental permission for a student interview would constitute an impermissible prior restraint.  (See 79 Cal. Op. Att’y. Gen. 58 (June 10, 1996).)This analysis could, arguably, be extended to photographing students.  However, there is no clear legal guidance on this point.Pragmatically, keep in mind that minors are legally considered to be incapable of providing effective consent.  Thus, the fact that a minor student gives consent to having his or her photograph taken does not mean that consent will later be deemed by a court to be an effective defense to a claim of, for example, invasion of privacy.  The younger the child, the more likely it is that a consent will be deemed ineffective.

The more sensitive or embarrassing the circumstances, the more likely it is that the photograph will be deemed to be an invasion of privacy.  Taking a photograph of a child with knowledge that the child’s parent had signed a form expressly withholding consent for photographing the child would probably weigh in favor of an invasion of privacy as well.  None of these factors is determinative, and they are balanced against the “newsworthiness” of the photograph.