It is well-settled that public institutions are generally not liable for statements made by their student publications because the First Amendment prohibits them from exercising control over such publications.  See, e.g., Lewis v. St. Cloud State Univ., 693 N.W.2d 466 (Minn. App. 2005).  So for public universities, the most prudent, and least risky, strategy requires a hands-off policy with respect to student publications. 

But what about private institutions?  They are not so immunized by the First Amendment; so are they liable for whatever their student publications do and say?  Or, like public institutions, can they, too, avoid liability by leaving their student publications alone?

Under the current state of the law, a private institution may be held vicariously liable even if the institution exercises no actual control over student publications.  This article will analyze the relevant factors for vicarious liability and then give practical tips on what a private college or university can do to minimize its legal liability for student publications.

I.          Vicarious Liability at Private Colleges and Universities

The central issue under vicarious liability is whether a private institution retains the power to control the student publication.  That means that the mere right to make decisions, even if that right is never exercised, may alone create liability.  Mazart v. State of New York, 441 N.Y.S.2d 600, 601-02 (N.Y.Ct.Cl. 1981) (“Control need not apply to every detail of [the publication’s] conduct and can be found where there is merely a right held by the [institution] to make management and policy decisions affecting the [publication].”)

To analyze an institution’s power to control a particular student publication, courts often consider the following non-exhaustive factors:

●          Is the student publication the institution’s “official” publication? Does the institution acknowledge its existence on campus?

●          Does the institution recognize the student publication as a student activity?  Does the institution give course credits for involvement in the publication?

●          Did the institution exercise any editorial control?  Has it, to the contrary, disavowed any editorial control and left that solely in the hands of students? 

●          Is the publication independently incorporated, giving it a separate legal existence?

●          Was funding provided by the institution?  Direct subsidy?  Student activity fee?

Courts also consider (a) whether the institution provides assistance to the publication, such as office space, utilities, computers, supplies, technical assistance, support services, compensation for student/journalists, reimbursement of student/journalists’ out-of-pocket costs, media/faculty advisor paid by the university; (b) whether there are separate accounting/financial books for the publication; (c) whether the institution approves, or enters into, contracts for the publication; (d) whether the institution offers any training to student/journalists; (e) whether the institution helps distribute the publication; and (f) whether the institution benefits from the publication, i.e., does it play a role publicizing university news and events?  Although there are relatively few cases illustrating how these factors play out, compare Wallace v. Weiss, 372 N.Y.S.2d 416 (N.Y.Sup.Ct. 1975) (finding vicarious liability) with Gallo v. Princeton University, 656 A.2d 1267 (N.J. Super. 1995) (no vicarious liability).

II.        Difficult Options for Private Colleges and Universities

The dearth of available on-point cases presents a private institution with a difficult choice.  Either exert greater control over student publications to reduce the likelihood of actionable conduct or take a complete hands-off approach, hoping a court someday will reject vicarious liability.  There is no easy answer.

The primary risk of exerting greater control is, of course, that it makes vicarious liability much more likely, while it, at the same time, lowers the chances of actionable conduct.  The price is some heavy lifting, as the institution would need to do what a normal publisher of content must do, e.g.: adopt  policies and procedures designed to prevent and correct foreseeable misconduct associated with the student newspaper; provide regular libel and intellectual property training to reporters and editors; review and edit potentially actionable articles prior to publication; and purchase libel insurance.  A private institution, however, may not want to bear the additional time and expense associated with these steps, and/or it may find such measures incompatible with the speech or press freedoms the institution has traditionally given its students.

A private institution could take the opposite tack and distance itself from student publications in a variety of ways, thereby making vicarious liability less likely:

●          Creating an independent legal incorporation for student publications.

●          Placing a disclaimer emphasizing the student publication’s separate operation from the institution and stating that any and all views expressed are not that of the institution.

●          Approving a written institution policy (i) affirming the student publication’s complete independence, (ii) stating that the student publication is not the institution’s “official” publication, and (iii) disclaiming any right or authority to control or influence editorial decisions. 

●          Separating student publications from any student course offering at the institution. 

●          Minimizing, if not eliminating, any financial support to student publications. 

●          Administering the publication’s funds separately from the institution in a separate bank account and the maintenance of separate books.   

  ●          Requiring student publications to cease using any of the institution’s marks. 

●          Ensuring, to the extent possible, that any contracts for the student publication’s benefit are signed by the publication and not the institution. 

●          Disconnecting, to the extent possible, student publications from any operational assistance or coordination (e.g., computers, technical assistance, printing and delivery).

  ●          Leaving it to the student publications to obtain libel insurance.

Implementing such measures bolster the institution’s position that it lacks both actual control as well as the power to control the publication.  How many of these steps -- indeed, whether all of these steps -- are necessary to eliminate vicarious liability is not clear from the cases.    

The right answer depends on your institution’s culture and risk profile.  Regardless of approach, many of these measures may be difficult to implement or even be inconsistent with the institution’s mission or accepted way of doing things.  And neither approach eliminates risk, especially considering the paucity of case law and somewhat inconsistent results.