What student journalists need to know about social media

When Ben Mueller started searching for news in California’s Marin County, he immediately thought of Jeffrey Epstein. He figured America’s third-richest county had to have connections to the man whose ties to wealth and power have captured headlines the world over. Mueller dug into the tranche of files related to Epstein the Department of Justice released to the public and found the links he was looking for: Epstein used a local agent to procure models.

After Mueller broke the news of Epstein’s affiliation with the North Bay, officials at Redwood High School confronted him. The modeling agent, whose name appeared in the DOJ files, had threatened to sue the school, and administrators were more concerned about possible liability than a free press. Mueller and his peers stood firm on California’s strong protections for high school student journalists.

The modeling agent, despite her bluster toward the school district, never filed a lawsuit.

But Mueller’s experience using social media highlights the legal concerns that can arise for other student media groups posting online. 

Virtually all college students are on social media, and with the vast majority of Americans using at least one platform daily, the internet has become one of the “most important places” for the exchange of views. Student media outlets need these forums to meet their audience where they spend their days. Transitioning to social media can bring with it a whole host of new legal questions. Below are some of the most common questions we’ve received about social media use by student journalists on the Student Press Freedom Initiative hotline.

Can my school punish me for a post?

Social media posts, comments, and other interactions are speech. At public colleges and universities, that means the First Amendment protects these interactions from university sanctions unless they fall into one of the narrowly defined categories of unprotected speech. And even then, an institution needs to show that the speech at issue meets courts’ definitions of those categories. Institutions cannot just claim speech is unprotected to bypass the First Amendment’s strictures.

Private schools, while not bound by the First Amendment, often promise their students expressive freedom. While some place other values ahead of free expression, the vast majority guarantee freedom of speech, which students would reasonably expect to be commensurate with those guaranteed by the First Amendment.

Even in high school, students have the right to express themselves freely on social media off-campus. That includes not just expressing their personal opinions about their cheer team but also reporting on news relevant to their community. And even school-sponsored high-school newspapers can have some protections under various state laws. 

At colleges and universities, student media are usually editorially independent, meaning students — not administrators — are responsible for their outlets’ content. That independence extends to social media speech. Indeed, by avoiding censorship of student media, including their online speech, colleges and universities can avoid liability for anything media outlets share.

Can I use my school’s name in my account?

Colleges and universities should leave students a wide berth to manage their own accounts, and they may not keep students from using the college’s name as part of the outlet’s name or social media handles. Still, colleges sometimes weaponize trademark law to try shutting down critical media outlets. At Brown University, administrators tried punishing a student journalist for naming his publication The Brown Spectator, a clear reference to the scope of the outlet’s coverage. With FIRE’s help, the Spectator fought back, and the publication continued to report on the university.

A group of Gallaudet University students faced a similar problem, with the university even asking Meta to take down their Instagram account for violating the university’s trademark. FIRE again got involved, asking first Gallaudet, then Meta, to reinstate the account. Meta recognized that the mere reference to the university was still protected by the First Amendment and did not infringe Gallaudet’s intellectual property rights, and restored the group’s account. 

What about music or images?

Every creative work, music, images, or even text, is entitled to copyright protection. At a student media outlet, who owns the copyright can be complicated. The best practice, regardless of how your outlet is structured, is having a clear agreement with all writers, photographers, and other creatives defining who owns the copyright for work created by the paper. If you don’t have an agreement, the best strategy is to get explicit permission from the author or creator of any creative content you use on social media. If you plan to use the music or images to sell ads or otherwise engage in commerce, make sure the license specifies that the work can be used for commercial purposes.

As for music, you’ll need a license for music you use for commercial ends on social media. On some platforms, the social media company has negotiated a license with a number of artists for people to use their music on a given social media platform. However, just because you can access music does not mean the license covers you. If you plan to use the music for commercial purposes (such as advertising), you may need a synchronization license from the rightsholder.

What about fair use?

Using other people’s work online can be protected by “fair use” depending on the circumstances. To determine whether a use is fair, courts analyze the purpose and character of the work, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. In other words, using a brief excerpt of a copyrighted telecast to comment on an interview might be fine, while reposting an entire TV episode as part of a TikTok promoting a review of that show would not be.

Courts also look at whether the use of the work is transformative. Works are transformative when an artist takes the original work and uses it to express something different. Using the Campbell’s soup logo to advertise a competing soup brand would not be transformative. Using that same logo to critique consumerism? Transformative.

Fair and transformative use is fact-dependent by design, and if you have specific questions, call SPFI’s hotline. 

Bottom line

Social media may be a new frontier in communications, but it’s one that existing protections for student journalism cover. The First Amendment is a powerful tool for journalists, and understanding its protections and limitations can give student journalists confidence using its powerful reach to bring their message to their audience. That’s why your editorial independence extends to your outlet’s social media pages. And when you’re creating content for those accounts, you should still keep in mind media law concerns like trademark law, copyright, and fair use. Social media is a vital tool for sharing your story, and SPFI is here to help you navigate the online legal landscape.