Court: First Amendment doesn't give newspapers right to stream live high school sports on Web

  • Article by: DINESH RAMDE , Associated Press
  • Updated: August 25, 2011 - 12:18 PM

MILWAUKEE - The association that oversees Wisconsin high school sports can limit who streams its games live on the Internet even though most of its member schools are funded by taxpayers, a federal appeals court ruled Wednesday. The decision could have First Amendment implications for media outlets nationwide.

The Chicago appeals court said the Wisconsin Interscholastic Athletic Association has the right to enter into exclusive contracts for live streaming of its sporting events, and that the First Amendment doesn't entitle other media outlets to claim the same broadcasting rights without paying for them.

The case began in 2008, when the sports association sued The Post-Crescent, an Appleton newspaper, for streaming live coverage of its high school football playoff games. Fans in many states rely on community newspapers for news about high school teams, and the newspapers say they need easy, unencumbered access to sporting events to provide that coverage. But the Wisconsin association said it couldn't survive without being able to raise money by signing exclusive contracts with a single video-production company for streaming its tournaments.

After a U.S. District judge sided with the association last year, an appeal was filed by the newspaper's owner, Gannett Co., and the Wisconsin Newspaper Association.

The appeals court ruled that an exclusive contract allowing one entity to broadcast an event doesn't amount to a gag order on other media outlets. It noted that the sports association still allowed other reporters to cover the games, interview players and coaches, and air up to two minutes of live video coverage of any game. Media outlets were only restricted from broadcasting entire games live.

"WIAA has the right to package and distribute its performance," the justices wrote. "Nothing in the First Amendment confers on the media an affirmative right to broadcast entire performances."

Bob Dreps, the attorney representing Gannett and the Wisconsin Newspaper Association, disagreed, contending that the sports association represents public high schools and should therefore be open to unrestricted media coverage.

"We're disappointed in the decision's failure to distinguish taxpayer-funded high school sports from professional sports in any meaningful way. These are government-sponsored events," Dreps said.

He said his clients hadn't decided whether to appeal.

The court based its decision on a 1977 case in which a man who performed a 15-second human-cannonball act at a state fair. Hugo Zacchini asked a reporter not to film the routine, but the reporter did so anyway and played the entire act on the evening news. The U.S. Supreme Court ruled in Zacchini's favor, saying the journalist could have complied by reporting on the event without filming it.

That decision "makes clear that the producer of entertainment is entitled to charge a fee in exchange for consent to broadcast," the appeals court wrote. "The First Amendment does not give the media the right to appropriate, without consent or remuneration, the products of others."

Todd Clark, a spokesman for the Wisconsin Interscholastic Athletic Association, said he was happy with Wednesday's decision.

"We're looking forward to working with newspapers and the media cooperatively as we have historically," he said.

Other athletic associations and newspaper groups have been closely watching the Wisconsin case, and the decision could lead to litigation in other states.

It's unlikely, however, that college sports will be greatly affected.

The NCAA, which many state associations try to closely mirror, was ruled a private entity by the U.S. Supreme Court nearly 25 years ago in a case involving then-UNLV coach Jerry Tarkanian, who sued the association, claiming it had tried to drive him out of basketball.

The Associated Press had pledged financial support to the newspaper association and Gannett if the Wisconsin case goes to trial.

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Online:

US Court of Appeals ruling: http://www.ca7.uscourts.gov/tmp/AP0VK4VF.pdf

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Dinesh Ramde can be reached at dramde(at)ap.org.

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