Can we really be so quick to impute the NCAA's actions to UL and find state action here?

First, the accounts that I have read make it pretty clear that the blogger was kicked out by NCAA reps and not by UL reps. Thus, it seems that the issue is whether the NCAA, not UL, can be considered a state actor such that the Constitution even applies. The Supreme Court said no to that proposition in Tarkanian; don't know if there are any other relevant precedents.

Secondly, I'm wondering if there's another problem in charging UL with the NCAA's behavior, e.g., a public school that opens its facilities after-hours to community groups would not be found in violation of the Religion Clauses by virtue of allowing a church group to use the facilities to preach religion, even though the public school itself would surely run afoul of the Constitution if it used its facilities for such use. I have no idea if UL allows such use of its facilities, but if so, is there a parallel here? i.e., if UL restricted the rights of the press there would be a first amendment issue, but if NCAA does it, there is no issue, even if on public grounds (assuming from above a court declines finding the NCAA a state actor)?

My first reaction is that courts would latch on to points 3-5 and frame this as a contractual issue way before they'd want to make it a constitutional issue.

 Jim -- 6/12/2007 2:25 AM  

The accounts I have read suggest that, while Bennett was approached and removed by an NCAA official, it was the U-L staff which was responsible for operating the game (including the press box) and for revoking Bennett's credentials (because U-L had issued those credentials). U-L officials also were in touch with Bennett and his editors as this was playing out, trying to get the paper to comply. And U-L officials permitted the NCAA official to remove Bennett, essentially adopting/ratifying that action.

The analogy to religious groups using school facilities (or for that matter, to a private team renting a stadium, as we have been discussing) does not apply. U-L had not turned control over to the NCAA; the NCAA does not work that way. It relies on its member institutions, as hosts, to control game operations. U-L was the host school (and one of the participants in the game) and U-L made and enforced decisions about credentialing, ticket sales, etc.

If this had been a regular-season game, U-L would be on the line as the controlling actor (there are cases and stories to support this understanding). I do not believe that changes simply because this was a tournament game--the NCAA "sponsors" all these events.

As for your contract argument: Assuming I am correct that U-L was in charge, there are limits on government's ability to contract when it comes to providing access to public spaces. Any contractual terms must comport with the First Amendment.

Obviously (I hope), U-L could not condition access to the press box on reporters only saying positive things. Well, any speech-restricting condition--even one, such as this, that might appear content-neutral--must be supported by some government interest to be valid. And, as I said in the post, I do not see what interest is served by preventing this form of reportage.

 Howard Wasserman -- 6/12/2007 6:36 AM  

Don't know the specifics of these playoff, but I recently recieved credentials at a championship event.

http://www.ncaa.org/library/handbooks/general/2006-07/2006-07_media_handbook.pdf

From Appendix C
Quote:
All media entities (including message boards and blogs) shall not publicly display any Representations,
including but not limited to audio descriptions, written descriptions, game logs, or play-by-play summaries of
in-game action until after the completion of that competition or corresponding session that is relative to a
particular championship. In-game updates on score and time remaining in competition may be publicly
displayed by any media entity whether credentialed or not.


Quote:

Acceptance of this credential constitutes agreement by the bearer and his or her organization to abide by the
foregoing conditions. Thank you for your cooperation.

 Anonymous -- 6/13/2007 1:31 PM  

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