The Wisconsin Interscholastic Athletic Association (WIAA) has emerged victorious in an important First Amendment case against the Gannett newspaper chain in a decision by the United States Court of Appeal for the Seventh Circuit.1
For years, most broadcast entities accepted the proposition that a sports sponsor controlled its broadcast rights. If the NBA contracted with CBS, for example, NBC and ABC accepted the decision, counter-programmed, and tried to win the NBA contract the next time it was up for bid. The same logic applied to the NCAA, to Little League Baseball on ESPN, and to State High School Associations.
A few years ago, the Wisconsin Newspaper Association (WNA), along with the Gannet newspaper chain, decided to challenge that proposition. More specifically, a Wisconsin newspaper objected to the Wisconsin Interscholastic Athletic Association (WIAA) extending its broadcast rights into the on-line world after WIAA signed an exclusive on-line streaming contract with a rival news outlet. The offended Wisconsin paper decided that it would stream WIAA state tournament games - the WIAA's contract be darned.
It is likely that the offended Wisconsin newspaper was simply making a protest over a limit in what it perceived as the scope of its news coverage. The offended paper probably thought that web streaming was a good and logical means of news coverage. They probably resented being told that they could not utilize this means of coverage, and decided to take a jab at WIAA. Well, their jab became a federal case.
WIAA could not, and did not, sit idly by and let its contract be breached. No respectable entity could. We would most certainly expect the NCAA, the NBA, the NFL, and even Little League Baseball to sue if someone broadcast their games without their permission. Indeed, if these entities didn't sue, then ultimately rival entities would broadcast their games without permission, and the broadcast rights would become virtually worthless. WIAA had to sue to protect its broadcast rights.
Confluence of circumstances
Under normal circumstances, an entity making an unlicensed broadcast of a game would fold its tent, pay a settlement, and the story would be over. However, a confluence of circumstances conspired to make this a federal case - literally - as the case ended up in federal court.
The first circumstance was the downturn in the newspaper business. The downturn made web streaming a cheap means of getting a story out. Basically, Gannet and WNA were arguing that they needed to be able to stream an event in order to cover it, and that to stream is, in essence, to cover. Second, WIAA is a small player in the grand scheme of things. Far better to fight a battle against WIAA than to challenge the big boys like the NCAA or NBA; so the rebel newspaper found support from the Gannett chain and the WNA. Better, after all, to duke it out against WIAA than to fight the big boys. This is a wise and time-tested legal strategy.
Third, WIAA is a state actor. The NBA, and NFL are clearly not. The presence of a state actor opened the door to assert some constitutional claims, as the constitution applies to state action but not, generally, to private conduct. The newspapers needed to be able to raise constitutional claims, as newspapers tend to have more legal success fighting for their First Amendment rights than they do when they breach a contract. When you put all these considerations together, you have the ingredients for a federal case.
State to federal, district to circuit
WIAA struck first, suing in state court to protect its intellectual property rights in the broadcast of high school state tournament games. Gannett and the WNA struck back, removing the case to federal court. Once in federal court, the case wound through the US District Court for the Western District of Wisconsin, where WIAA prevailed. The case was appealed to the U.S. Court of Appeals for the Seventh Circuit.
On August 24, 2011, the Seventh Circuit ruled in favor of WIAA. The appeals court ruled that high school state association on-line broadcast agreements do not violate news outlets' First Amendment rights. Even though the case was limited to on-line broadcast agreements, the Seventh Circuit made it very clear that its logic extends to any type of broadcast agreement, concluding that "streaming or broadcasting an event is not the same thing as reporting on or describing it."
Phony First Amendment challenge
It is a landmark ruling. If the Seventh Circuit had ruled in favor of Gannett, the next attack would have been on television and radio broadcast rights. Soon, high school state associations would have been fighting a multi-front battle. The litigation expenses would have piled up, and the state associations might have had to fold up shop and pass the costs on to the students. Then, we'd all be losers. Ultimately, the moral of this whole story is that newspapers might be having a rough go of it, but they shouldn't be allowed to contrive phony First Amendment issues in order to solve their problems.
1. Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc (No 10-2627) (U.S. Court of Appeals For The Seventh Circuit).
Posted September 12, 2011
