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Monday, June 11, 2007
More Speech Retrictions in Sports: The NCAA and Live-Blogging

Thanks to everyone who has e-mailed and commented on the story about Real Salt Lake. But that free-speech controversy, which occurred last Thursday, is old news; it thus takes a backseat to a newer, fresher free-speech controversy.

Last Friday, writer Brian Bennett of the Louisville Courier-Journal had his media credentials revoked and was removed from the press box at the University of Louisville's Jim Patterson Stadium. The reason? He was live-blogging the NCAA Super-Regional Baseball game between U-L and Oklahoma State. This apparently violated an NCAA policy that deems live-blogging to be a "live representation of the game" and thus a violation of the NCAA's broadcast agreements with CBS and ESPN. The NCAA also seems to argue that the events at games are its intellectual property and can be distributed while the game is going on ("between the first pitch and the final out of each game") only through NCAA-approved outlets. The NCAA wants to ensure that the public either is watching an NCAA-approved broadcast on television or on a web feed; no reading about it on other sites. Reports and comments here, here, here, here, here, here, and here. Thanks to several alert readers and commenters for bringing this up.

The Courier-Journal is making First Amendment noises, pointing out that its writers are being prevented from reporting about events occurring in a public facility. So, as my favorite Soprano's commentator would say, let's deconstruct.

Unlike our previous examples, state action is not a problem. The University of Louisville is a public institution and Jim Patterson Stadium is a public, on-campus facility. The fact that U-L was enforcing an NCAA rule, rather than one of its own making, is irrelevant. U-L adopted the rule and made it its own by enforcing it. One report on the story states that U-L acted to revoke Bennett's credentials only after the NCAA told U-L officials that failure to enforce the rules might be used to deny U-L future opportunities to host NCAA events. So it would be ironic if doing so caused U-L to violate the First Amendment. But that is what happens when institutions get into bed with the NCAA.

So, some thoughts about the free-speech concerns.

1) I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted. But I invite those with more knowledge of intellectual property (including my co-bloggers) to educate me on this point.

2) No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights?
Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. And consider an additional problem with the rule--if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room.

3) How far can this rule extend? Could the NCAA stop a fan in the bleachers from describing the action via his cell phone? Could it stop someone from calling his friend, where the friend is sitting by a computer at Starbucks waiting to live-blog the report (remember the scene in Bull Durham, showing how they did radion broadcasts of the team's away games?)? Could the NCAA stop a fan in the bleachers with a WiFi connection or a Blackberry from live-blogging? If the answer to those questions is no, as I think it must be, then the NCAA's rule is invalid because it treats non-media speakers better than media speakers.

4) Related to # 3: Deadspin points out that wire services have historically provided running in-game updates--reporters provided editors with updates, which were sent out over the wires. Live-blogging seems to work on the same principle. It is faster and uses different technology. And it reaches the end-user (the reader) directly and in real-time, rather than being filtered through the editor and the wire. But there is no meaningful distinction.

5) Here is the potential wrinkle: The dispute here is about access to a particular, narrow part of the stadium: the press box and everything that comes with media credentials. Teams generally have greater (although not unlimited) discretion in deciding who gets such media credentials, while exercising no discretion over who can, by buying a ticket, access the broader public forum of the stands. Presumably, U-L/NCAA could set some conditions on granting those credentials (conditions it could not impose on the ordinary bleacher bum). Might one permissible condition be a limit on the time and manner in which reporters could provide information to the public--no live reports until the game ends?
It seems like a content-neutral rule--it applies to everyone reporting about the game, regardless of what they are going to say. But I would suggest it still fails because it does not appear to serve any meaningful government interest. I cannot see a valid justification or interest underlying this rule.

Let me close on two points. First, Deadspin predicts that, given the stream of bad publicity for the NCAA (which certainly does not need more bad publicity or more events illustrating its institutional incompetence), the policy will be gone within a week (i.e., by the start of the College World Series). I think they are right.

Second, and a determinant of the first, much depends the media rallies to the Courier-Journal's defense and how much noise the media makes about this. And that depends on how willing the old media is to support the new-media bloggers that MSM reports spend so much time railing about. It helps that the blogger in this instance works for a good, old-fashioned newspaper. But this is the future of sports writing.

A host of newspapers and media outlets got behind Larry Flynt and Hustler Magazine when they were sued by Jerry Falwell. If the old media can support a pornographer, can they support a blogger?


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.

Blogger 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.

Blogger 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.

From Appendix C
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.


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 Anonymous -- 6/13/2007 1:31 PM  

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