Freedom of the press is guaranteed by the highest law of the land, the Constitution.

In 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 notion of the press as the fourth branch of government is sometimes used to compare the media with Montesquieu’s three branches of government: legislative, executive and judicial. Edmund Burke said, “Three Estates in Parliament; but in the Reporters’ Gallery yonder, there sat a Fourth estate more important far than they all.” It is the Fourth Estate that acts as a check and balance on all the other states, holding government accountable to the people.

To that end, in the United States, freedom of the press is the guarantee by a government of free public press for its citizens and their associations, extended to members of news gathering organizations, and their published reporting. It also extends to news gathering, and processes involved in obtaining information for public distribution.

Libel

College media outlets are periodically sued for libel: “any published communication—words, photos, pictures, symbols—that falsely harms a person’s reputation,” according to Law of the Student Press. However, proving libel is not easy and involves four hurdles for the person making the allegations: publication, identification, harm and fault.

First, the person must prove that the statement was distributed to a third party—publication.
Second, the person must prove that the individual was identified by the item in question even if not by name. Giving an individual a “fake name” does not necessarily mean the person can’t be identified and can result in other libel cases or allegations of false reporting.

Third, and this is one of the more difficult hurdles, the person involved must prove that the publication of the information did harm him or his reputation. For example, statements that accuse another of committing a crime, of being arrested or of otherwise being involved in a criminal activity may cause harm.

Finally, the person making the allegations must show that the media outlet was at fault. In other words, the person suing must prove that the media outlet did something it should not have done or didn’t do something it should have done.

Even when an individual makes allegations of libel, it’s possible to defend against the libel suit if the media outlet involved has consent of the people involved, has reported the truth, and/or has privilege to the issues at hand. To use privilege as a defense, the media outlet must prove that three standards are met: that the information was from an official record or proceeding recognized by the state; that the media report was “fair and accurate,” balanced and presented in context, and that the source of the statement was clearly noted in the media report.

Freedom of Information

Freedom of information is not a concept unique to the United States. More than 60 countries have implemented some form of freedom of information legislation, laws designed to put limits on government secrecy. These laws, enacted in 1966 as the Freedom of Information Act, may also be described as open records or sunshine laws. A related concept is open meetings legislation, which allows the public access to government meetings, not just to the records of them.

A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not the person asking for it. The person making the request does not usually have to give an explanation for his request, but if the information is not disclosed a valid reason has to be given.

Open Records in North Carolina

As the North Carolina Statutes, chapter 32, section 1 states: “The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.”

Despite numerous exceptions, including exceptions dealing with students grades, student conduct, attorney-client communication, doctor-patient relationships, etc., the prevailing idea in North Carolina is that public records are “the property of the people.”

Acknowledging that e-mail is a communications tool used by North Carolina government agencies, even e-mail, according to the statutes, is part of the public record. “Electronic mail is a public record when sent or received in normal business processes (according to G.S. §121-2(8) and §132-1).”

As the North Carolina Office of Archives and History reminds state employees, “Your e-mail is part of your job. No expectation of privacy or confidentiality applies.”

However, sometimes administrators don’t want to release material that even they know is subject to the Freedom of Information laws and may initially deny access to these materials. To gain access to materials to which administrators initially deny access, the first step is to request politely and formally, and on-the-record (by e-mail, fax or letter), the materials. Be specific. Inform the official that you believe you have a right to access to these materials under the open records laws of the State of North Carolina. Secondly, if the official denies access to the material, provide that administrator with a formal FOI (freedom of information) request. If the administrator then fails to provide the materials, legal action may be required.

“Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.”

Open meetings in North carolina

In North Carolina, public access to information about the workings of government is provided primarily through the Open Meetings Law (N.C. G.S. §§ 143-318.9 through 143-318.18 (1991)) and the Public Records Law (N.C. G.S. §§ 132-1 through 132-10 (1995)). According to the Tapping Officials’ Secrets, published by The Reporters Committee for Freedom of the Press, “These two statutes, coupled with a strong tradition of tenacity and ingenuity on the part of the state’s press and a deeply entrenched sense of entitlement on the part of the state’s citizens, serve to open many doors and filing cabinets that otherwise would remain closed.”

When it comes right down to it, Student Government officials surely act like elected officials at other levels. They are elected by their constituents. They have at least some power to set policies that affect the students. They represent the student body to elected officials and administrators. And they distribute significant amounts of student fee money just like a state legislator would distribute tax monies.

In fact, the North Carolina Open Meetings Law says, “Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.”

The permitted purposes for closing a session are:

i. Confidential and Privileged Information. A public body may close a meeting to prevent disclosure of information that is privileged or confidential under state or federal laws or information.

ii. Honoraria. A public body may close a meeting to prevent the premature disclosure of an honorary degree, scholarship, prize or similar award.

iii. Attorney-Client Privilege. A public body may close a session to consult with an attorney with regard to the handling or settlement of a claim, judicial action or administrative procedure.

iv. Industry/Business Expansion. A public body may discuss matters relating to the location or expansion of industries or business in the area in a closed session.

v. Real Estate Acquisitions and Employment Contracts. A public body may meet in a closed session only to establish (or instruct its agents concerning) its position with regard to negotiating (i) the price or other material terms of a real property acquisition or (ii) the compensation or other material terms of an employment contract.

vi. Specific personnel and employee issues. A public body may consider the qualifications or conditions of initial employment of or investigate complaints or charges against an individual public officer or employee at a closed session. Final action on these issues must be taken at an open meeting. General personnel issues may not be considered in a closed session, and a public body must address filling a vacancy in the public body during an open meeting.

vii. Criminal misconduct. A public body may plan, conduct, or receive reports regarding investigations of alleged criminal conduct.

Yet on occasion, some Student Government officials will try to close off meetings to the public even when these exceptions don’t apply. And even if they have an exception, they’ll fail to provide the appropriate notification or fail to document the action in the minutes for the public.

While it’s not completely clear form North Carolina statutes whether the Student Government at the public universities are open, it is clear that they should be open. Trends definitely favor openness and public opinion generally favors holding Student Government officials accountable for their actions. Because the authority of the NC State Student Government is granted by the Board of Trustees and even the Board of Governors, it is clear that the Student Government was intended to be an agent of those groups, groups which clearly fall under the open meetings laws.

Open meetings laws, in general, provide legal authority for members of the public to attend, photograph, record or broadcast the meetings of “governmental” or “public bodies.” That doesn’t mean that all meetings must be open. For example, the right to close meetings to discuss “personnel matters,” “adjudicatory proceedings,” or “legally confidential” matters are common exemptions. Even when closed, the group must first hold an open meeting and then move into closed session with a clearly stated purpose.

Copyright

According to the Library of Congress, “Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.”

While not unlimited in scope, the bottom line with copyright is that reproduction of a copyright item generally requires the (written) permission of the copyright holder.

The copyright begins when the work is created and belongs to the author of the work or, in the case of employees producing work as part of their scope of employment, by the employer. The copyright exists, by default, for 70 years or 95 years from the first publication in the case of items produced as “work for hire.”

As the Associated Press says in the AP Stylebook, “The most important limitation on the reach of copyright law for journalists is that ideas and facts are never protected by a copyright. What is protected by the copyright is the manner of expression.”

The doctrine of “fair use” permits the use of copyright material without the author’s permission only in limited circumstances. News reporting, criticism and comment are favored purposes under the fair-use doctrine. So, for example, it’s acceptable to publish a representation of a CD jacket when accompanying a review of that CD. Reproducing a photo, article or page from another publication as a news/feature item without the permission of the copyright holder is not considered fair use.

Privacy

The so-called “right” to privacy is a new concept in the United States. It was not envisioned as part of the Constitution. In fact, it was not envisioned until around 1980 and now includes public disclosure of private and embarrassing facts, false light, intrusion and misappropriation.

But concepts such as “embarrassment” are subjective and the courts have held them to a high standard. For example, material must be sufficiently private, sufficiently intimate and highly offensive to be considered “private.” Further, it must be more than mildly embarrassing, it must contain information that would humiliate or seriously offend an average person. Almost any information about a public official or well-known public figure would be considered newsworthy and not likely private.

FERPA

The Family Educational Rights and Privacy Act, also known as FERPA or the Buckley Amendment, requires the University to keep educational records private and provides that students have the right to inspect records about themselves that are maintained by the university. The Act allows disclosure of directory information, information contained in a student’s education records “that would not generally be considered harmful or an invasion of privacy if disclosed.” Such information includes, but is not limited to, students’ names, addresses, telephone numbers, photos, participation in officially recognized activities and sports, the weights and heights of members of athletic teams, dates of attendance, and degrees and awards received.